In June, 2015, the U.S. Department of Justice, Civil Rights Division issued guidance regarding the obligations of public entities, including school districts, under the Americans with Disabilities Act (“ADA”). The guidance document, “ADA Update: A Primer for State and Local Governments” provides general guidance to assist governmental entities in understanding and complying with the ADA’s requirements.
The ADA is the federal civil rights law that prohibits discrimination against persons with disabilities. Under this law, persons with disabilities are entitled to the rights, privileges, advantages, and opportunities that others have when participating in activities of a school district.
Who is protected by the ADA?
The ADA protects the rights of persons who have a physical or mental impairment that substantially limits their ability to perform one or more major life activities, such as learning, reading, breathing, walking, thinking, seeing, hearing, or working. While the ADA does not apply to a person whose impairment is not substantial, it will apply to a person whose disability is substantial but can be moderated or mitigated. Thus, the ADA will apply to someone with diabetes that can normally be controlled with medication, or someone who uses leg braces to walk, as well as to persons who are temporarily substantially limited in their ability to perform a major life activity.
The ADA prohibits a school district from isolating, separating, or denying persons with disabilities the opportunity to participate in the programs that are offered to others. The ADA requirements for a school district applies to all programs, services, or activities of the school district.
Persons with disabilities have to meet the essential eligibility requirements needed to participate in the program, service, or activity just like everyone else. The ADA does not entitle a disabled person to waivers, exceptions, or preferential treatment. However, a school district may not impose eligibility criteria that screen out, or tend to screen out, individuals with disabilities unless the criteria are necessary for the provision of the service, program, or activity being offered.
Rules that are necessary for the safe operation of a program, service, or activity are allowed, but must be based on a current objective assessment of the actual risk presented by the program, and not on assumptions, stereotypes, or generalizations about people who have disabilities.
Requirement of reasonable modifications of policies and procedures
The ADA requires a school district to make “reasonable modifications” in the usual way of doing things when necessary to accommodate people who have disabilities.
Importantly, only “reasonable” modifications are required. Any modification that would result in a “fundamental alteration” – a change in the essential nature of the entity’s programs for services – is not required.
In the guidance document, the U.S. Department of Justice addresses the requirements of the ADA concerning service animals. The ADA defines a service animal as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. Under the ADA, “comfort”, “therapy,” or “emotional support” animals do not meet the definition of a “service animal” because they have not been trained to do work or perform a specific task related to a person’s disability.
The ADA requires that service animals be under the control of the handler at all times and be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents him/her from using these devices. Individuals who cannot use such devices must maintain control of the animal through voice, signal, or other effective controls.
Public entities may exclude service animals only if: (1) the dog is out of control and the handler cannot or does not regain control; or (2) the dog is not housebroken.
Public entities may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, as a condition for entry. In situations where it is not apparent that the dog is a service animal, a public entity may ask only two questions: (1) is the animal required because of a disability?; and (2) what work or task has the dog been trained to perform? Public entities may not ask about the nature or extent of an individual’s disability.
Communicating with People Who Have Disabilities
The Justice Department’s guidance document also addresses the requirement of the ADA concerning communication with disabled persons. The ADA requires public entities to take the steps necessary to communicate effectively with persons who have disabilities. The rules allow for flexibility in determining effective communication solutions. The goal is to find a practical solution that fits the circumstances, taking into consideration the nature, length, and complexity of the communication as well as the person’s normal method(s) of communication.
A public entity is required to give primary consideration to the type of auxiliary aid or service requested by the person with the disability. The public entity must honor that choice, unless the public entity can demonstrate that (1) another equally effective means of communication is available, or (2) the aid or service requested would fundamentally alter the nature of the program, service, or activity, or (3) the service requested would result in undue financial and administrative burdens. If the choice expressed by the person with a disability would result in an undue burden or a fundamental alteration, the public entity still has an obligation to provide another aid or service that provides effective communication, if possible.
A school district must comply with both the Individuals with Disabilities Education Act (IDEA) and the ADA regarding effective communication for a student who has been identified with a disability under the IDEA. The IDEA requires a district to provide individualized services necessary for the student to access educational services, regardless of cost, administrative burdens, or program alterations required.