General Nondiscrimination Requirements This briefing sheet describes general nondiscrimination requirements to use when analyzing whether the programs, policies, and practices of a public school system comply with Title II of the Americans with Disabilities Act. These requirements apply to all operations, services, benefits, programs, and activities of a school district. The obligation of a school district to provide a free appropriate public education (FAPE) to school-age individuals with disabilities, regardless of the nature or severity of their disabilities, are described specifically under Section 504 of the Rehabilitation Act of 1973 and are incorporated in the general provisions of Title II. However, this briefing sheet will not discuss the provision of FAPE, which is well covered by the U.S. Department of Education brochure: Free Appropriate Public Education for Students with Disabilities (September, 1996). The resource section of this sheet describes how to order the brochure. What Is the Scope of the ADA's Nondiscrimination Requirements? A school district must ensure that no qualified individual with a disability is, on the basis of disability, excluded from participation in or denied any benefit of its services, programs, or activities, or subjected to any other discrimination [28 C.F.R.§35.130(a)]. The requirement to ensure that qualified individuals with disabilities are not discriminated against in public school programs is applicable to the programs, activities, services, and operations that are operated or provided directly by public school districts, as well as those operated or provided by another entity on behalf of the public school district under contractual or other arrangements [28 C.F.R.§35.130 (b)(1)]. What are the Basic Equal Opportunity Requirements Under the ADA? Under the ADA, the following are prohibited: * Provision of unequal opportunity or benefit * Denial of opportunity to participate or benefit * Provision of benefits or services that are not equally effective for persons with and without disabilities * Programs that are "separate or different" for persons with disabilities School Districts Must Ensure Equal "Opportunity to Participate or Benefit" A public school system must ensure that no qualified individual with a disability is, on the basis of disability, excluded from participation in, or denied any benefit of, its services, programs, or activities, or subjected to any other discrimination [28 C.F.R.§35.130(a)]. In providing general benefits and services, a public school district must ensure that a qualified individual with a disability is not denied the opportunity to participate in any of its programs or to benefit from any aid, benefit, or service that it provides. With respect to school-age individuals with disabilities, a public school district must ensure that no student is denied a free appropriate public education [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(1)(i)]. Example: Is this individual subjected to discrimination on the basis of disability? In an effort to increase parental involvement, a school district invites parents of students to volunteer as classroom aides to perform a variety of tasks, including distributing and collecting materials and escorting groups of students to the playground, the library, and the lunchroom. A parent with a speech impairment volunteers, but is denied the opportunity because of his disability. This is a violation of Title II. A public school district must also ensure that, in providing general services and benefits, a qualified individual with a disability is provided an opportunity to participate in its programs that is equal to the opportunity that is provided to nondisabled persons to participate. A school district must also ensure that a qualified individual with a disability is provided with an opportunity to benefit from any aid, benefit, or service that is provided under its programs that is equal to the opportunity that is provided to nondisabled individuals. Example: Does this school policy discriminate against a parent with a disability? A school sends out a notice to parents, asking that they volunteer to accompany the class on various field trips throughout the year. The request is conditioned by a statement that for "insurance reasons" parents with disabilities may not serve as chaperons. This policy violates Title II, because the opportunity to participate in their child's field trips is denied to all parents with disabilities. Thus, the opportunity provided to those parents with disabilities who would be qualified to participate in the field trips is unequal to the opportunity provided to nondisabled parents. Benefits or Services Provided Must be "Equally Effective" In providing general services and benefits, a school district must ensure that services provided to qualified individuals with disabilities are effective enough to afford equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as nondisabled individuals. Example: Are the benefits or services provided "equally effective"? A school sponsors an exhibit of art produced by high school students. A parent with a vision impairment cannot see the sculptures created by his son, and requests that the school permit him to touch the sculptures. Although the sculptures would not be damaged by touching, the school informs the parent that the art must remain in the display case and that persons attending the exhibit may not touch the artwork. Whereas nondisabled individuals can appreciate the sculptures simply by looking at them, the parent with the vision impairment can appreciate them only by touching them. Thus, the school's response does not ensure that the parent has an equal opportunity to obtain the same result or gain the same benefit as that provided to nondisabled persons. Clearly, the benefit provided to the parent is not "equally effective." Can Public School Systems Establish Separate Programs for Persons With Disabilities? Under Title II, a school district may not operate separate or different programs, or provide separate or different benefits or services within programs, for individuals with disabilities, unless such programs, benefits, or services are necessary to provide benefits to persons with disabilities that are equally as effective as those provided to nondisabled persons [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(1)(iv)]. Even when separate programs, benefits, or services are permitted under Title II, a school district must provide them in the most integrated setting appropriate to the needs of qualified individuals with disabilities [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(d)]. School districts must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities [28 C.F.R.§35.103(a); 28 C.F.R.§35.130 (d)]. However, a school district may offer separate or special programs when necessary to provide individuals with disabilities an equal opportunity to participate in the program or benefit from its services. Any such separate or special program must be specifically tailored to meet the needs of the individuals with disabilities for whom it is provided. Separate programs may not be established based on stereotypes or presumptions about what a class of individuals with disabilities can or cannot do. However, even where the school district operates a permissibly separate program or offers a permissibly separate service or benefit, it may not deny participation in the regular program or provision of the regular service or benefit to any qualified individual with a disability [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(2)]. The determination as to whether an individual with a disability is qualified to participate in the regular program must necessarily take into account other requirements of Title II, such as making reasonable modifications in policies, programs, and practices, providing auxiliary aids, and ensuring program accessibility. Can Public School Systems Require People with Disabilities to Pay Surcharges to Cover the Costs of ADA Compliance? Title II prohibits placing surcharges on individuals with disabilities to cover the cost of measures necessary to provide nondiscriminatory treatment [28 C.F.R.§103(a); 28 C.F.R.§35.130(f)]. When Are School Systems Required to Modify Their Policies, Practices, or Procedures? A school district must make reasonable modifications to its policies, practices, and procedures when such modifications are necessary to ensure that a qualified individual with a disability is not discriminated against on the basis of disability [28 C.F.R.§35.130(b)(7)]. A modification of a policy, practice or procedure would not be reasonable where the district can demonstrate that the modification would "fundamentally alter" the nature of the particular service, program or activity. Each school district must examine its policies, practices, and procedures related to the provision of services, benefits, and programs. Wherever these services, benefits, and programs are not accessible to qualified individuals with disabilities because of policies, practices, and procedures, the school district must identify modifications that would enable the district to meet all substantive requirements to ensure equal opportunities for individuals with disabilities. Can Persons with Disabilities be Found Ineligible for Certain Activities? A school district may not use eligibility criteria for participation in its programs or receipt of its benefits or services that directly or indirectly screen out individuals with disabilities, or that directly or indirectly cause individuals with disabilities to be denied full and equal participation, services, or benefits, unless the eligibility criteria are necessary for the provision of the service, program, or activity being offered [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(8)]. In assessing general eligibility requirements, it is necessary to recall that an individual with a disability who meets the essential eligibility requirements for the receipt of services or participation in a program is "qualified" to receive services from the district or participate in a district program. This is true regardless of the terms of that participation--that is, with or without reasonable modifications to rules, policies, or practices; with or without the removal of architectural barriers; and regardless of whether auxiliary aids or services are provided. Such an individual may not be screened out or limited because of difficulty in performing tasks that bear only a marginal relationship to the purpose of the service, benefit, or program. Note, however, that a school district is not required to eliminate those requirements that are necessary to the provision of the service, benefit, or program. A school district may impose legitimate safety requirements necessary for the safe operation of its services, benefits, or programs. However, any safety requirement must be based on actual risks, and not on speculation, stereotypes, or generalizations about individuals with disabilities. Example: Are these eligibility requirements permissible? A school district offers an evening non-credit course in scuba diving. The course instructor proposes to prohibit students who use wheelchairs from signing up for the course on the presumption that a person who uses a wheelchair would not be able to swim well enough to participate in the program. Denial of admission to a course based on stereotypes or generalizations about what individuals with disabilities can or cannot do is inconsistent with Title II. However, where a safety requirement can be shown to be necessary based on real risks, it is permissible under Title II even if the requirement would tend to screen out individuals with certain types of disabilities. In the case of the scuba diving course, where the school district can demonstrate that a certain level of swimming ability is necessary for safe participation in the class, the school district may require that all participants in the class pass a swimming test, even if the test would tend to screen out individuals with certain types of disabilities. However, a blanket prohibition such as the one described above would be prohibited. What School District Administrative Practices Could be Illegal Under the ADA? A school district may not use "criteria or methods of administration" that result in discrimination on the basis of disability [28 C.F.R. § 35.103(a); 28 C.F.R. § 35.130(b)(3)]. As discussed above, under Title II, a public school system may not have written policies or actual operating practices that exclude qualified individuals with disabilities directly on the basis of their disability. The requirement prohibiting criteria or methods of administration that have the effect of discriminating on the basis of disability means that a school district may not use policies or practices--even where they are not stated in terms of prohibiting participation on the basis of disability or where they are not intended to prohibit or limit participation on the basis of disability--that cause qualified individuals with disabilities to be denied an equal opportunity to participate in a program or to benefit on an equal basis under the program. What ADA Requirements Must be Taken Into Account in Site Selection? In determining the site or location of a facility, a school district may not select a site or location that: (1) has the effect of excluding individuals with disabilities, denying them benefits, or otherwise subjecting them to discrimination; or (2) has the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(4)]. Thus, the site selection procedures of a school district should routinely include an assessment of whether the terrain or any other feature of a site or location under consideration would have any adverse effect on participation by qualified individuals with disabilities. Can the School District Be Held Accountable for Discrimination by Other Entities to Whom It Provides Significant Assistance? School districts must identify agencies, organizations, and persons to whom the school system provides "significant assistance" and determine whether, through that assistance, they may be aiding or perpetuating discrimination against qualified individuals with disabilities. Interpretive guidance issued by the U.S. Department of Education in connection with Section 504 states that, in determining whether assistance to another entity is "significant," a school district should consider the substantiality of the relationship between the district and the other entity, including any financial support the district provides, and whether the other entity's activities relate so closely to the district's programs that they should fairly be considered activities of the district. Can the School District Be Held Accountable for Discriminatory Procurement Practices? A school district may not discriminate on the basis of disability in the selection of contractors in any procurement [28 C.F.R.§35.103(a); 28 C.F.R.§35.130(b)(5)]. Example: Has this school district discriminated in awarding a contract? A school district rejects the bid of, and refuses to contract with, a food service company to operate its cafeteria because the company employs individuals with physical and cognitive disabilities. The company submitted the lowest qualified bid and is fully qualified to perform all the functions set out in the request for bids. This action is a violation of Title II. Is the School District Allowed to Provide Special Programs for Persons with Disabilities Not Provided to Others? Title II permits a school district to provide benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities, beyond those required by the regulation [28 C.F.R. § 35.130(c)]. This means that school districts may provide programs, services, and benefits that are designed only to benefit individuals with disabilities without incurring additional obligations to nondisabled persons or to other classes of individuals with disabilities. Are School Districts Required to Provide Personal Devices and Services for Persons with Disabilities? In general, Title II does not require school districts to provide personal devices such as wheelchairs, prescription eyeglasses or hearing aids, readers for personal use or study, or services of a personal nature, including assistance in eating, toileting, or dressing [28 C.F.R. § 35.103(a); 28 C.F.R. § 35.135]. This provision serves as a limitation on the school district's obligation to comply with other Title II requirements, including the duty to provide auxiliary aids and services to facilitate communication, and the duty to modify policies, practices, and procedures to ensure accessibility. This provision does not affect the obligation of a school district to provide a personal device or service in the form of special education or a related aid or service, if that device or service is necessary to provide a free appropriate public education (FAPE) to the individual student. Example: Is the school district required to honor this request? A parent with a severe mobility impairment volunteers to chaperon a class trip. The parent informs the school district that it must provide her with an attendant to assist her in eating, toileting, and dressing. Under the facts of this case, Title II would not require the school district to provide the personal services required by the parent. Miscellaneous The following questions were asked at workshops or over the ADA National Access for Public Schools hotline. The answers were either written or reviewed by the Office for Civil Rights at the U.S. Department of Education Q: A Parent Teacher Organization (PTO) sponsors a field trip to a museum. One child in the fourth grade uses a wheelchair. The PTO is told that they must provide a wheelchair-accessible bus for the student. Because the cost is prohibitive, the PTO cancels the field trip for the entire class. Is the PTO responsible for providing a wheelchair-accessible bus for the student? A: Under Section 504 and Title II, the term "program or activity" embraces the programs, activities and services offered by a school district in fulfillment of its mission. It spans all offerings open to any of the audiences served by the school district, including PTO organization activities. A PTO field trip would therefore be a program offered by the school district, and all such programs must offer qualified students with disabilities an equal opportunity to participate. If a student with a disability requires accessible transportation to have an equal opportunity to participate in the program, the school district itself, rather than just the PTO, would be responsible for paying the costs for the accessible transportation. Q: There are several students in a high school who are known troublemakers. They act out periodically. Is the school required to evaluate these students under Section 504 and Title II? A: School districts must conduct an evaluation of these students if they need or are believed to need special education and/or related aids or services. Q: What types of assistive technology, such as a computer, is a school district required to provide a student with a disability for doing homework at home? A: As part of the evaluation and placement procedures of Section 504 and Title II, the placement team must identify the student's individual needs and describe the necessary program for the student. The placement team is responsible for determining whether a student with a disability needs assistive technology at home, such as a computer, to ensure the provision of a free appropriate public education. The placement team would also determine the specific appropriate assistive technology that the student may need to ensure the provision of a free appropriate public education. Q: A school district offers several voluntary recreational programs to students over the summer for which it charges tuition. A student with a disability expresses interest in attending one of these programs. The student's Section 504 plan does not reference any of these summer programs. However, the student's plan does specify the related aids and services the student needs to participate in the school district's general educational program during the regular school year. What are the school district's obligations toward the student? Would the school district be obligated to provide supplementary services the student may need in order to participate in the summer program? A: If the student meets the essential eligibility requirements for participation in the summer program, the student is a qualified individual with a disability and cannot be categorically excluded from the program. The school district is required to offer the student meaningful and equal access to the program. Also, the student's parents may not be charged more than the parents of nondisabled students are charged for their children's participation in the program. The school district must provide the student with supplementary services necessary to his or her participation in the program unless the provision of the services would change the fundamental nature of the program or constitute an undue financial or administrative burden. For the student to have meaningful and equal access to the summer program, the district does not necessarily have to provide the student with the related aids and services that are specified in the student's written plan for the student's participation in the general educational program during the school year. Q: A student who has a heart condition wants to play on the soccer team. The school district does not generally require medical exams. May the district require him to have a medical exam ? A: If the district has reason to believe that a student has a disability, the district must conduct any assessment (including any medical assessments) that it believes is necessary in order to determine whether the student does have a disability, including a disability that could affect participation in extracurricular athletic activities. In making determinations about participation in extracurricular sports activities, school districts must ensure that decisions are not based on stereotypes about individuals with disabilities. Q: A school district is providing a free appropriate public education to a student with a hearing impairment. The student's mother submitted an application for her child to attend a magnet program at another site within the district. The student was accepted into the magnet program. The school district states that since it is currently providing a free appropriate public education to the student, it is not obligated to provide the services that the student would need in order to be provided with a free appropriate public education in the magnet program. Must the school district provide the services that the student would need in order to be provided with a free appropriate public education in the magnet program? A: Students with disabilities who are accepted into magnet programs have the same right to participate in the magnet programs as do non-disabled students who are accepted into magnet programs. Because the student with a disability is qualified to participate in the magnet program, the school district is required to provide the services that the student needs in order to receive a free appropriate public education in the magnet program. Q: Is a school district required to provide continued services for a student with a disability during a ten day suspension? During a suspension of more than ten days for misconduct that is not a manifestation of a disability? A: A school district is not obligated to provide educational services to a student with a disability who has been suspended for ten days. With respect to the second question, the U.S. Department of Education has interpreted the nondiscrimination provisions of Section 504 and Title II to permit school districts to cease educational services to students with disabilities during periods of exclusion from school that exceed ten school days if nondisabled students in similar circumstances do not continue to receive educational services. However, under the Individuals with Disabilities Education Act (IDEA), educational services must continue for IDEA-eligible students who are excluded for misconduct that was not a manifestation of their disability during periods of disciplinary removal that exceed ten school days. Q: What are a school district's obligations to a student with a disability who is covered under Section 504 and the ADA and is caught illegally using drugs in school? A: Although an individual addicted to drugs may be an individual with a disability, persons who are currently engaging in the illegal use of drugs are not protected by the ADA. Thus, a school district may withhold services or benefits from a person because of his or her current illegal use of drugs. By contrast, a person with a history of drug use who has been successfully rehabilitated, or someone who is participating in a drug rehabilitation program and is not currently using drugs illegally, is protected. The ADA amended the Rehabilitation Act of 1973, including Section 504, to incorporate the ADA provisions regarding "current use of illegal drugs." The ADA also amended the Rehabilitation Act to allow school districts to take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student with a disability who is currently engaging in the illegal use of drugs or in the use of alcohol, to the same extent that such disciplinary action is taken against nondisabled students.* Further, the due process procedures described in Section 504 do not apply to such disciplinary actions. Consequently, rights to educational services under the ADA and Section 504 can be lost by current illegal use of drugs or the use of alcohol. *For students who receive services under the Individuals with Disabilities Education Act (IDEA) see the IDEA regulations 34 C.F.R. Part 300 Discipline Procedures. Q: Do Section 504 and Title II require that a school district provide bus transportation for children with disabilities to after-school or extracurricular activities? A: Section 504 and Title II require that nonacademic services, including transportation, be provided in a manner that allows children with disabilities an equal opportunity to participate in after-school or extracurricular activities. Where children without disabilities are provided transportation to and from extracurricular activities, children with disabilities must also be provided transportation. However, even where children without disabilities are not provided transportation to an extracurricular activity, children with disabilities must be provided transportation that is necessary to allow them to participate in the extracurricular activity. For example, a child using a wheelchair might require transportation to a school-sponsored activity to which other children walked. The provision of transportation as a related aid or service to a child with a disability is a matter that should be addressed by the placement team as part of the evaluation and placement procedures of Title II and Section 504. Q: A school district does not provide transportation to and from school for students who live within two miles of the school that they attend. A student has cerebral palsy, uses crutches, and is unable to walk two miles. Is the school district responsible for providing transportation services for this student? A: If the student requires transportation services in order to attend school, transportation services must be provided for the student. Transportation services that a student with a disability may require in order to be provided with a free appropriate public education should be addressed through the evaluation and placement procedures. For More Information Disability and Business Technical Assistance Centers (DBTACs) distribute ADA regulations and other material and offer technical assistance on all aspects of the ADA * 800-949-4232 voice/TTY * www.adata.org The U.S. Department of Education's Office for Civil rights offers technical assistance regarding the requirements of Section 504 and Title II of the ADA * 800-421-3481 * www.ed.gov/offices/OCR The U.S.Department of Justice offers technical assistance on Title II and Title III of the ADA and distributes those regulations and other ADA publications. * 800-514-0301 voice or 800-514-0383 TTY * www.usdoj.gov/crt/ada/adahom1.html The Equal Employment Opportunity Commission offers technical assistance, regulations and other publications on ADA employment provisions. * 800-669-4000 voice or 800-669-6820 TTY * www.eeoc.gov Resources * Compliance with the Americans With Disabilities Act: A Self-Evaluation Guide for Public Elementary and Secondary Schools ($21) * The ADA and Public Schools: Access for All - 18 minute video ($35) Both are available from the ADA National Access to Schools Project. See contact information above. * Free Appropriate Public Education for Students with Disabilities * Student Placement in Elementary and Secondary Schools & Section 504 and Title II of the Americans with Disabilities Act * The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973 The pamphlets are available from the U.S. Department of Education's Office for Civil Rights 800-421-3481 or www.ed.gov/offices/OCR. 1