Disclaimer
The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.
Introduction
In this episode, I am covering how disabled parents can advocate for their rights to be accommodated by the schools of their children. Since public schools are covered by Title II of the Americans with Disabilities Act (Title II) and private schools, except most religious schools, are covered by Title III of the Americans with Disabilities Act (Title III) I will briefly recap important concepts under both title II and Title III.
For more information about Titles II and III respectively, please visit the pages entitled ADA Title II Information and ADA Title III Information. Links to both pages will be in the episode notes when this episode is posted to the Demand Our Access website. Additionally, you may also want to review the episode called Effective Communication under Titles II and III. That, too, will be linked in this episode when it is posted to the website.
If you have any comments or questions, please use the contact form on the Demand Our Access website, or email me at Jonathan@demandouraccess.com.
Recapping Titles II and III
For those of you who heard the episode Advocating for Our Rights under Title II and/or heard the episode Advocating for Our Rights Under Title III, the review materials here will not be new. I have included them here, though, so if someone needs what I believe is the most important information to advocate for their rights as a disabled parent, all of that information will be in one place.
Recapping Title II
Since this is only a recap of our rights under Title II, I have chosen to cover only accommodations and modifications under Title II and effective communication under Title II. I have chosen these two topics because requests for accommodation and/or modification are how we get our rights under Title II and most requests for accommodation made under Title II relate to effective communication.
Requests for Accommodation or Modification
Requests for Modification
I’m beginning with a discussion of modifications because they are more straightforward. When you request a modification, you are requesting a state or local government modify an existing policy, practice, or procedure to enable you as a disabled person to participate. Here are some examples of when you may need to request the modification of a policy, practice, or procedure from a state or local government:
- If a city has a policy that electric vehicles are not allowed in a park, someone using an assistive mobility device would have the right to have the policy modified so they can use their wheelchair in the park.
- If a state has a policy banning all animals from a museum, the handler of a service animal would need to request a modification to that policy allowing service animals to enter the museum.
- If a county has a policy requiring paper applications be completed by someone needing benefits, people with any number of disabilities would have the ability to request the policy be modified.
Requests for Accommodation
Requests for accommodation cover anything that does not involve the modification of a policy, practice, or procedure. Here are some examples of accommodations:
- If someone requests a sign language interpreter, they are requesting an accommodation.
- If someone requests an accessible electronic document, they are requesting an accommodation.
- If someone requests assistance in completing a print form, they are requesting an accommodation.
- If someone requests a public meeting be moved to a more accessible facility, they are requesting an accommodation.
An Important Note on Modifications and Accommodations
There may be circumstances when you need to request both a modification and an accommodation; for example, if a county does require the completion of a print form for someone to access benefits, a person with a disability may both choose to request a modification to the policy to ensure the county stops discriminating against people with disabilities. The person would then need to request an accommodation to ensure they can complete the inaccessible print form while the policy is being modified.
Effective Communication
I have included effective communication under Title II, but you must remember the effective communication requirement also applies to entities covered by Title III. To keep this simple, I have written this section so that it only applies to Title II; however, I have included the biggest difference between effective communication under Title II and effective communication under Title III.
The effective communication requirement is designed to ensure communication between state and local governments and people with disabilities is as effective for those of us with disabilities as it is for people without disabilities. Specifically, the law requires that we must be able to:
- Communicate with state and local governments
- Receive information from state and local governments
- Convey information to state and local governments
That means that all information made available to the public is to be accessible to those of us with disabilities. All methods of accepting community feedback used by state and local governments must be accessible to us.
Auxiliary Aids and Services
What the ADA calls auxiliary aids and services (aids and services) are tools and/or assistance enabling those of us with disabilities to effectively communicate. The effectiveness of provided aids and services depends on our individual disabilities and the ways we individually choose to communicate. Examples of aids and services include but are not limited to the following:
- Providing a blind person an accessible electronic document
- Ensuring an online form is accessible to assistive technologies
- Providing a Deaf person a sign language interpreter
- Assisting someone with a mobility disability in completing a print form
Primary Consideration
One of the big differences between Title II and Title III is that state and local governments must give "primary consideration" to our requested methods of communication. This means the state or local government must honor our requested method of communication unless it can provide an equally effective method of communication or it can demonstrate that our requested method of communication would result in a fundamental alteration or an undue burden.
I’m not going to discuss fundamental alterations and undue burdens here. If a school attempts to deny your request for effective communication, whether the school is covered by Title II or Title III, review the episode called Effective Communication Under Titles II and III for additional information.
Companions
People described by the law as companions also have rights. Typically, the issue of a so-called companion needing an accommodation under Title II arises when a parent with a disability needs to communicate with a state or local government on behalf of their child. The right of disabled parents to be accommodated holds whether the parent is individually accessing the particular activity, program, or service or if the child is accessing the activity, program, or service on their own; for example, if a blind parent wishes to register their five-year-old daughter for swimming lessons the registration process must be accessible whether the child has a disability or not.
No Surcharges
In finishing our recap of effective communication under Title II, I need to remind you that a state or local government cannot charge you for the provision of any aid or service. The cost of ensuring effective communication is entirely the responsibility of the state or local government.
Recapping Title III
Since this is intended to be a brief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights.
Coverage
General Provisions
Title III covers:
- Places of public accommodation
- Commercial facilities
- Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes
Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.
Public Accommodations
The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.
Defining a Place of Public Accommodation
A place of public accommodation is a facility whose operations:
- Affect commerce
- And fall within one of 12 categories.
For our purposes, we are interested in the places of education category. The Department of Justice’s description of the places of education category says the following:
Places of education include nursery schools, elementary, secondary, undergraduate, or postgraduate private schools.
Commercial Landlords and Tenants
Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay. The commercial landlord and tenant relationship is most likely to arise in a situation where a private school covered by Title III rents space to use for the private school.
Religious Institutions
Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular.
Examples
A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution’s private school does not have to follow Title III.
If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III.
If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III.
The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution.
Private Clubs
Strictly private clubs aren’t covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III:
- Members exercise a high degree of control over club activities
- The member selection process is very selective
- Substantial membership fees are charged
- The entity operates as a nonprofit
- The club was not founded to avoid federal civil rights laws
Facilities of a private club lose their exempt status to the extent they are made available to the public.
Example
A private country club rents to a private organization to run a private school from its facility. The private school accepts students whose families are members of the country club and from families who aren’t members of the country club. By allowing nonmembers of the country club to attend the private school, the private club has lost its Title III exemption for the portion of its facility used as a private school.
State and Local Governments Under Title III
State and local governments aren’t subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I’m mentioning this in a recap of Title III is that facilities and programs can be subject to the requirements of Titles II and III.
Examples
A state’s parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant.
Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III.
A city owns an office building. It rents the first floor of the building to an organization that runs a private school. The entire building, because it’s owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure the private school lives up to the city’s responsibilities under Title II.
A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III.
Surcharges
A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.
A Quick Note on Section 504
Section 504 refers to Section 504 of the Rehabilitation Act of 1973. Section 504 applies to entities, like public schools,, that receive federal funding. Since public schools were required to follow Section 504 long before there was an ADA, most schools refer to their accommodations plans and officers as Section 504 programs. Since much of the ADA was modeled after Section 504, how you address a school that receives federal funds and is subject to Section 504 is not much different than it would be advocating for your rights under Title II. But remember, you are able to access your rights under Title II, Title III, and Section 504. If, for some reason, you believe advocating under Section 504 is better, you can do that. Even if the school keeps referring to Section 504, you can still advocate under Title II. In almost every instance, the outcome should be the same. At some point, I will cover Section 504 so folks can understand how similar it is to the ADA.
Advocating for Our Rights as Disabled Parents
Since parents could be advocating under either Title II, if we are talking about a public school, or Title III, if we are talking about a private school, I give an example for advocating under both titles. For our purposes, I will pretend that both the public and the private school in our examples use an online payment portal called Parent Pay for parents to do things like add money to their children’s lunch accounts and pay their fees for things like arts and music. I will also pretend that both schools are regularly sending home print forms to be signed and print assignments parents are to work on with their children.
As in our other episodes where we discussed advocating for our rights, we will be using our three steps to advocacy:
- Decide who to contact
- Prepare what to say
- Once your request is submitted
Decide who to Contact
When it comes to deciding who to contact when you need to request an accommodation or a modification from a public school, the process should be relatively straightforward. By now, I really hope every public school has someone assigned to addressing accommodations and/or modifications for those of us with disabilities. In most cases, public schools call their disability compliance program their Section 504 program. In some cases, the program’s name will mention both Section 504 and Title II. Either way, the person you will contact is the person listed to address either or Section 504 or Title II.
If by some chance you cannot find a contact person working on Section 504 and/or Title II, I would address your request to the school district’s superintendent. I suggest contacting the superintendent because I prefer to have my accommodations made on a system-wide basis. I do not want to have to negotiate the same accommodations with every teacher and every school. This is especially true if you have students in different schools and/or you have a student in middle or high school, where they will have several teachers.
Prepare What to Say
Once you have figured out who you will contact, it’s time to decide what you will say. In most cases, they will want you to complete an online form or send an email. But you always have the right to call or simply visit their office. No matter how you decide to make your initial contact, the sample I have provided will help you decide what to say.
Title II Example
My name is John Smith. My daughter Elizabeth attends Green Elementary. As a qualified person with a disability, I am writing to request two accommodations under Title II of the Americans with Disabilities Act Title II.
First, I need you to ensure Parent Pay is accessible to those of us who use assistive technologies to navigate the web and use apps. Currently, there are many unlabelled buttons and links with non descriptive labels, making it extremely difficult for me to use Parent Pay.
While you are working on ensuring Parent Pay is accessible, I will need accommodations for performing the tasks I need to do in Parent Pay that are not accessible.
Second, I need all information typically sent home with students to be emailed to me in an accessible electronic format. I am fine with formats, like Word and PDF, as long as the file I get is accessible.
Thank you for considering my requests. I look forward to discussing them with you.
Here, I told them who I am, the name of my child, the school she attends, I clearly identified the accommodations I need, and let them know Parent Pay is not accessible. While I suggested accessible Word documents or accessible PDFs, I did not try to tell them how to accommodate me. In making this initial contact, I want to be open to their ideas while knowing I will stick to getting what I need to have equal access.
Once Your Request has Been Submitted
Again, it is impossible for me to know how the person you contact will react. Sadly, many of the people assigned to coordinate Section 504 and/or ADA programs for schools are not qualified to do that work. In many instances, they have little knowledge of Title II. So, you will need to, in more instances than you should, educate them about your request and your rights. The following tips should help you once you are actually talking to someone about your request:
- Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate.
- Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person.
- Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you.
- Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate.
- If your request deals with an inaccessible app or website, remind them of the Department of Justice’s new rule on web accessibility under Title II. Let them know they only have a couple of years to make their app and/or website accessible, so they would be helped to start on making accessibility improvements now.
Title III
Decide who to Contact
Deciding who to contact to request an accommodation or a modification from a private school can be more difficult than it usually is when contacting a public school. The reason is that many private schools are not familiar with their responsibilities under Title III. If you cannot find any information as to how your child’s private school addresses Title III requests, you should just contact the school’s principal and let them figure out how the school will address your request.
Prepare What to Say
Title III Example
My name is Paul Cooper. My son Brian attends Douglas Academy. As a qualified person with a disability, I am writing to make two requests for accommodation under Title III of the Americans with Disabilities Act (Title III).
First, I need you to ensure Parent Pay is accessible to those of us who use assistive technologies to navigate the web and use apps. Currently, there are many unlabelled buttons and links with non descriptive labels, making it extremely difficult for me to use Parent Pay.
While you are working on ensuring Parent Pay is accessible, I will need accommodations for performing the tasks I need to do in Parent Pay that are not accessible.
Second, I need all information typically sent home with students to be emailed to me in an accessible electronic format. I am fine with formats, like Word and PDF, as long as the file I get is accessible.
Thank you for considering my requests. I look forward to discussing them with you.
In case you did not notice, the language related to the accommodations was the same in both sample requests. I did that to highlight the reality that in most cases how you request an accommodation under either Title II or III is the same.
Once Your Request is Submitted
To avoid repeating myself too much, I will say the tips provided under the Title II section apply to Title III, with one important difference. The Department of Justice has not yet clarified a standard for what constitutes accessible apps and/or websites under Title III. But the Department of Justice expects the websites of Title III entities to be accessible to those of us with disabilities.
Conclusion
Thank you for listening to the Demand Our Access podcast. I appreciate your support.
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