Jesus... Fucking... Christ !!! - 'School Bans Disabled Girl From Using Walker' - MSNBC

[MichiganVote]

111. Not quite.

DOES THE SCHOOL DISTRICT HAVE TO MAKE STRUCTURAL CHANGES TO EXISTING BUILDINGS TO MAKE PROGRAMS ACCESSIBLE?

Public school systems must ensure that programs, services, and activities are accessible to and usable by individuals with disabilities. Ensuring program accessibility is an important aspect of enhancing opportunity for people with disabilities. Both Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 prohibit public school systems from denying people with disabilities equal opportunity to participate in programs, services, and activities because school facilities are either inaccessible to them or unusable by them [28 C.F.R.§35.149 and 34 C.F.R.§104.21]. Both regulations contain two standards to be used in determining whether a covered entity's programs, activities, and services are accessible to individuals with disabilities. One standard deals with new construction and alterations; the other deals with "existing" facilities.

The program accessibility and least restrictive environment requirements of Title II and Section 504 do not conflict. For students with disabilities, school districts must review the students' individual needs and devise programs to meet those needs. Accessibility considerations may not be factored into the determination of whether a student needs a restrictive or non-restrictive placement. Once a particular placement has been agreed to, the school district must ensure that the student has access to the programs that are part of the student's placement. As for providing services at the school nearest a student's home, there is no such explicit requirement in Section 504 or Title II. However, if a school district did adopt a specific policy that students will attend school at their "home" school, but then denied participation to students with disabilities, there might be a violation of the law. (sort of a catch 22)

Although the program accessibility standard is a rigorous one, both the Title II and Section 504 regulations permit flexibility in how the standard can be met. Both structural and nonstructural methods of achieving program accessibility are acceptable.

Although nonstructural methods of achieving program accessibility are acceptable, they should not have the effect of segregating people with disabilities or compromising their dignity and independence. Priority must be given to offering programs or activities in the most integrated setting appropriate [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)].

If no effective nonstructural alternatives can be provided to achieve program accessibility, public school systems must make the necessary structural changes [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. These changes must conform to new construction and alterations.

Although structural changes to make existing facilities accessible are not required as a matter of course, they must be undertaken if there is no alternative means to achieve program accessibility [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. Structural changes include such alterations as installing a ramp, widening a doorway, or lowering a toilet.

Structural changes include not only those required to provide access to persons with mobility impairments, but also those required to render the program accessible to persons with other disabilities. For example, people with hearing impairments may require assistive listening systems. The full range of disabilities should be kept in mind as program accessibility is considered.

DOES THE PROGRAM ACCESSIBILITY STANDARD APPLY ONLY TO STUDENTS?

Public school systems must ensure that their programs are accessible to parents, guardians, and members of the public with disabilities as well as to students. This requirement includes all programs, activities, or services that are open to parents or to the public, such as parent-teacher organization meetings, plays, and graduation ceremonies. With respect to existing facilities, school districts may satisfy their obligations to make programs accessible to parents who have disabilities by reassigning their child to a school facility that is accessible.

DOES THE SCHOOL DISTRICT HAVE TO MAKE STRUCTURAL CHANGES TO EXISTING BUILDINGS TO MAKE PROGRAMS ACCESSIBLE?

Although the program accessibility standard is a rigorous one, both the Title II and Section 504 regulations permit flexibility in how the standard can be met. Both structural and nonstructural methods of achieving program accessibility are acceptable.

Although nonstructural methods of achieving program accessibility are acceptable, they should not have the effect of segregating people with disabilities or compromising their dignity and independence. Priority must be given to offering programs or activities in the most integrated setting appropriate [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)].

If no effective nonstructural alternatives can be provided to achieve program accessibility, public school systems must make the necessary structural changes [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. These changes must conform to new construction and alterations.
Standards.

humancentereddesign.org


CASELAW
It is impermissible for a student to be barred from access to classes and other
activities that regular education peers are provided and which could easily be provided by the school through accommodations, such as a wheelchair or wheelchair accessibility.

For example, a district was required to incur a minimal, nonrecurring expense necessary to make a local school closest to the home of a student who used a wheelchair accessible. The district’s decision to place the student at a middle school which was accessible to wheelchair uses was impermissibly based upon physical accessibility only, rather than the student’s needs. Moreover the expenditure would benefit not only the student but the larger constituency of all wheelchair users as well. San Antonio Indep School Dist., 17 EHLR 1168 (SEA TX 1991).

Several OCR (Office Civil Rights) regulations and opinions have dealt with this issue in the past. The right to access to ALL school activities, including extracurricular activities, is an area in which OCR is very supportive of student rights.

Following are citations to 504 regs, followed by citations to some OCR letters and rulings:

The federal regulations governing Section 504 can be found in Volume 34 of the Code of Federal Regulations (“C.F.R.”).

34 C.F.R. § 104.37 sets forth the requirement that public schools provide students with disabilities an equal opportunity as that available to non-disabled students to participate in non-academic and extracurricular services and activities. This section reads as follows:

§ 104.37 Nonacademic services.

(a) General.

(1) A recipient to which this subpart applies shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.

(2) Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment.

Note that §104.34, which addresses “Educational Settings,” provides, with respect to Nonacademic Settings, as follows:

(b) Nonacademic settings. In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set for in § 104.37(a)(2), a recipient shall ensure that handicapped persons participate with nonhandicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question.

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See Williamstown (MA) Publ. Schs., OCR I, Boston MA, 2003, 39 IDELR 43, in which a parent had complained that the district denied her daughter, who had spastic cerebral palsy, access to a computer lab, the choral group and a field trip. When OCR investigated, it found that the student had been unable to accompany her class on a field trip because there was no plan for transportation. OCR found that the district did not provide the student with an equal opportunity to participate in extracurricular activities. The case was resolved by the district agreeing to provide, inter alia, appropriate transportation to allow such equal access.

See Chino Valley (CA) Unified School Dist.,OCR, 3/10/2000, addressing a complaint that 12th grade students with disabilities were excluded from a field trip to Medieval Times. In it letter, OCR states:

"Section 504 prohibits the exclusion of students from participation in any school activity on the basis of disability."

The matter was resolved by the district entering into a written agreement under which it agreed to sponsor a second field trip to Medieval Times, and pay the total cost for all the students who had been previously excluded. Additionally the district agreed that in the future, all eligible students, including those with disabilities, would be invited to attend such field trips. In addition, the District agreed to provide Section 504 disability sensitivity training to all high school administrators. Based on all these assurances, OCR indicated that it would consider the matter resolved, but that "OCR will monitor the District's full implementation of the commitments contained in the VRP" [voluntary resolution process].

See Chesterfield (VA) County Public Schools, ICR XI D.C. 2003, 39 IDELR 163, in which OCR approved a settlement agreement after students with mobility impairments complained that field trips to a local movie theater were not accessible. OCR agreed that it was inappropriate for school personnel to carry the students to the second floor so they could see the performance, and approved the district's agreement to request the theater to make the performance wheelchair accessible.

See Rim of the World (CA) Unified Sch Dist., 38 IDELR 101, OCR OX (2002), in which a district avoided a finding of violation of 504 when a teacher told a blind student that he could not participate in a field trip unless accompanied by a family member only because OCR found that this was a "miscommunication" and an "isolated incident" by a teacher who was not the student's normal teacher and because the teacher was not stating school policy - - the student had gone on other field trips without any requirement of a family member coming along.

See Ramirez v D. of Columbia, 32 IDELR 87 (US D.Ct. DC, 2000). In holding that the school had to modify a restroom so the student could maneuver his wheelchair through the doorway, the court ruled that access was required under IDEA and 504. The court noted that regs implementing the ADA and 504 require a program "when viewed in its entirety" to be "readily accessible to individuals with disabilities." It also referenced Appendix A to 28 CFR §35.150(b)(1), which discusses acceptable vs. unacceptable ways to provide program accessibility. (Carrying the child is not considered an acceptable method for achieving program accessibility,)

See also Evans County (GA) Sch. District, OCR June 30, 1999, in which OCR approved a settlement requiring the district to hire an architect to renovate the entire school system. Among other complaints that were addressed, the student with a mobility impairment had been excluded from a pep rally because he was unable to open the gymnasium doors. With respect to access to the pep rally, the case states:

"With respect to the allegation that the Student was treated differently than students without disabilities when left outside the gym during a pep rally because he was unable to open the gym doors, the District informed OCR that the Complainant notified the Special Education Direction (Director) of the incident. The Director and the classroom teacher apologized to the Student and the Complainant and developed a plan to insure that the incident would not reoccur. . . . As a result of the District's actions, OCR considers the matter resolved."

See also Bad Axe (MI) Pub. Sch. OCR Region V 20 IDELR 819 (7/23/93) finding numerous violations of 504 accessibility requirements, including lack of accessibility to the spectator seating in the football stadium because there were no curb cuts to allow individuals in wheelchairs to reach the seating area.