Jennifer Mauskapfjmauskapf@bruman.com

Brustein & Manasevit, PLLCSpring 2012 Forum

Enforcement Entities Civil Rights Laws and Disability

Sec. 504 ADA Title II & III

Recent Civil Rights Issues Bullying Accessible/Emerging Technology Hidden Disabilities Service Animals

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•US Dept. of Education, Office for Civil Rights (OCR)•US Dept. of Justice, Civil Rights Division (DOJ CRD)

Department of Education, Office for Civil RightsMission: “To ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”

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Title VI of the Civil Rights Act of 1964 Title IX of the Education Amendments

of 1972 Age Discrimination Act of 1975 Section 504 of the Rehabilitation Act of

1973 Title II of the Americans With

Disabilities Act of 1990 2002 Boys Scouts of America Equal

Access Act5

Carries out mission through: Complaint Investigation and Resolution Proactive Enforcement: Compliance

Reviews Monitoring of Resolution Agreements Technical Assistance

Disability complaints comprised half of the complaints filed in FYs 06-08

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Washington, DC HeadquartersTwo Enforcement Directors12 Enforcement Offices

Department of Justice, Civil Rights DivisionMission is to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society

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Enforces a broader range of statutes including: The Civil Rights Act of 1965 Title III of The Americans with Disabilities

Act of 1990 Sections 504 and 508 of the

Rehabilitation Act of 1973 May enforce IDEA and Title II of the

ADA upon referral from other governmental agencies

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Headquarters in Washington, D.C. Division is made up of ten sections

including the Educational Opportunities and Disability Rights sections

Disability Rights Section Activities: Enforcement Certification Negotiated Rulemaking Coordination Technical Assistance

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•Section 504 of the Rehabilitation Act•ADA Titles II & III

Any individual who: (1) has a physical or mental impairment that

substantially limits one or more major life activities; (2) has a record of such impairment; or, (3) is regarded as having such impairment

Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks

Intent is to prevent any form of discrimination against individuals with disabilities who are otherwise qualified. Individual must be qualified for the program, service,

or job

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SECTION 504

Applies to entities that receive federal funds

Pre-requisite to receipt of federal funds

Creates affirmative obligation on covered educational institutions, including the requirement that necessary supports, such as accommodations, be provided to ensure access

34 C.F.R., Part 104

ADA Applies to virtually every

entity except churches and private clubs

Title II (28 CFR Part 35) Applies to public entities,

including public schools Covers access to all

programs and services offered by the entity, including physical access

Title III (28 CFR Part 36) Applies to public

accommodations, including private universities

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Students with Physical or Mental Impairment

Students with Record of Physical or Mental Impairment

Students Regarded as Having Physical or Mental Impairment

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IDEA Students

SECTION 504 STUDENTS

A student must meet the academic and technical standards requisite for admission or participation without regard to their disability in order to be a “qualified” individual

Postsecondary institutions are not required to identify students with disabilities

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May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability

Must provide integrated programs and services

Must eliminate unnecessary eligibility standards

Prohibits requirements that tend to screen out individuals with disabilities

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May not place special charges on individuals with disabilities

Programs must be readily accessible and usable by individuals with disabilities

Must furnish auxiliary aids and services when necessary

BOTTOM LINE: Requires reasonable modifications unless a fundamental alteration or undue burden in the program would result

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Remove architectural and structural communication barriers or provide readily achievable alternative measures

Provide equivalent transportation services

Maintain accessible features of facilities and equipment

Design and construct new facilities and alterations in accordance with the Americans with Disabilities Act Accessibility Guidelines

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Factors to consider: Nature and cost of the particular action Overall financial resources available to

fund the specific program in question and effect of expenditure on the resources of the program

Overall financial resources of the school Size of the school system Accommodation at issue and how it

relates to the program as a whole 19

Determination must be made by the head of the public entity or designee

Must be accompanied by a written statement of the reasons for reaching that conclusion

Determination must be based on all resources available for use in the program

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October 26, 2010 OCR Dear Colleague Letter Bullying behavior may cross the line to

become “disability harassment” Strong Anti-Bullying Campaign

White House Conference on Bullying Prevention Anti-bullying website (www.stopbullying.gov) now

includes a section on Special Considerations for Youth with Disabilities and Special Health Needs

Dec. 2011 – DOJ Office of Juvenile Justice and Delinquency Prevention (OJJDP) released Bullying in Schools: An Overview, the first of five planned bulletins examining bullying in schools and support schools can provide bullying victims.

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Private schools initially refusing to accept students with autism or other special conditions or need Compliance Agreements

▪ Montessori Academy in Baldwin Park, CA▪ Beach Babies Learning Center in Old Saybrook, CT

Consent Decree: US v. Nobel Learning Communities

Complaints▪ SC child care and after-school center▪ California swim school

NOTE: Charter Schools23

Application Process Inaccessible Atlanta’s John Marshall Law School Law School Admission Council

Examination Accommodations Law School Admission Test National Board of Medical Examiners NJ Complaint

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OCR Guidance June 29, 2010 Dear Colleague Letter stating that

colleges and universities cannot use inaccessible technology where no reasonable accommodation or modification exists or is unavailable

May 26, 2011 FAQ discussing the application of the equal access requirements of the ADA and Section 504 to the use of emerging technology

University of Virginia Darden School of Business Use of Kindles denied students equal access to the

University’s programs, activities and effective communication in violation of Section 504 and Title II of the ADA

Similar agreements with other postsecondary schools

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Transportation Ensuring equal access to transportation

services for students with disabilities▪ Chicago Pubic Schools compliance review▪ Alabama State Department of Education

Physical accessibility of facilities Adoption of the 2010 ADA Standards for

Accessible Design, effective May 2011, mandatory May 2012

OCR Compliance Reviews:▪ Montana Tech of the University of Montana▪ University of Montana, Helena

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Physical or mental impairments not “readily apparent to others”

Students with hidden disabilities are afforded the same protection under Section 504 and the ADA as other students

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Gloucester County VA Public Schools School found student with serious peanut

allergy not to have a qualified disability and therefore not eligible for 504 protection

OCR intervened in decision due to “exceptional circumstances”

Mystic Valley Regional Charter School State Hearing Officer decision required

school to ban all peanut products from child’s classroom due to life threatening allergy

School failed to make undue hardship/burden argument

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Definition of service animal was changed effective March 15, 2011; now limited to dogs

An animal that meets the definition of “service animal” can be a reasonable accommodation

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HUD v. University of Nebraska at Kearny - Fair Housing Act lawsuit regarding dog in university-owned apartment to support student with depression and anxiety

Bakersfield City School District - OCR found that a school district violated the ADA and Section 504 by excluding dog without proper procedures for review

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United States Department of Education Office of Civil Rightshttp://www2.ed.gov/about/offices/list/ocr/index.html

United States Department of Justice Civil Rights Divisionhttp://www.justice.gov/crt

Office for Special Education Programshttp://www2.ed.gov/about/offices/list/osers/osep/

index.html Department of Education Anti-Bullying

Websitehttp://www.stopbullying.gov/at-risk/groups/special-

needs/index.html

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legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C.

Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic

materials, or any follow-up questions or communications arising out of this presentation with any attorney at

Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You

should not take any action based upon any information in this presentation without first consulting legal counsel

familiar with your particular circumstances.

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