STATEMENT BY KENNETH L. MARCUS, ASSISTANT SECRETARY FOR CIVIL RIGHTS, ON THE 28TH ANNIVERSARY OF THE SIGNING OF THE AMERICANS WITH DISABILITIES ACT
July 26, 2018
Twenty-eight years ago today, President George H. W. Bush signed into law the landmark Americans with Disabilities Act (ADA). The ADA is the most consequential civil rights legislation with regard to this nation’s more than 56 million Americans with all types of disabilities. Since that historic day, countless barriers have given way to positive progress in education and other realms of life, although much work remains to be done.
As Secretary Betsy DeVos said in July 2017, “Children with disabilities are no less deserving of their civil rights protections than any other student.” True to that commitment, the U.S. Department of Education’s Office for Civil Rights (OCR) has remained at the forefront of protecting students with disabilities against discrimination. By vigorously protecting civil rights, OCR has paved the way for students with disabilities to have the same opportunity as is accorded to other students to reach their greatest potential. OCR’s enforcement of the ADA has resulted in increased access and opportunities for students with disabilities at preschools, elementary and secondary schools, apprenticeship programs, libraries, and colleges and universities nationwide.
Since January 20, 2017, OCR has resolved 2,295 disability-related complaints with a positive change—meaning that a school altered its practices in a positive way for a complainant. These cases include positive changes in the areas of a Free Appropriate Public Education (FAPE), website accessibility, retaliation, different treatment/exclusion, denial of benefits, disability harassment (unwelcome conduct based on a student’s actual or perceived disability), academic adjustments (including auxiliary aids and services and modifications to academic requirements), and student housing.
Here are some specific examples of how OCR has directly made a difference in the lives of students with disabilities:
- Ensuring Equitable Services, Proper Evacuation, and Accessible Facilities (Denver Public School District, CO): Yesterday, OCR resolved this complaint from the parent of a student who uses a wheelchair alleging that the District failed to provide equitable services to the student; left the student behind on multiple occasions during fire drills at the school; and that the school’s facilities are inaccessible, including allegations that restrooms were inaccessible, doors were too heavy to open, ramps were too steep to navigate, and that seating in the auditorium and in the student’s classrooms was not properly accessible. During the investigation but before OCR had made any findings, the District indicated its willingness to take steps necessary to ensure compliance with Section 504 and Title II. Under the agreement, the District will:
- convene a Section 504 team meeting to determine the amount and nature of compensatory services or other remedial measures that the District will provide to the student;
- review and, as necessary, revise the school’s evacuation procedures;
- implement the evacuation procedures, and publish them in student and employee handbooks and on the website;
- develop and implement a process to notify school visitors of the evacuation procedures;
- develop a schedule of evacuation drills to be conducted at the school during the 2018-2019 school year;
- provide training to all School staff on the evacuation procedures and process for notifying visitors about the evacuation procedures;
- evaluate the accessibility of and identify any barriers to access for individuals with disabilities at the school; and
- implement the remediation plan, taking the steps necessary to address each identified barrier to access in accordance with the OCR-approved plan.
- Addressing Auxiliary Aids and Academic Adjustments (Central Washington University, WA): OCR resolved this complaint alleging that the University failed to provide auxiliary aids and academic adjustments to address the needs of a student with multiple chemical sensitivities who had been denied remote access to her classes and lectures because the University believed providing remote access would constitute a fundamental alteration of the classes and lectures. OCR found the University in violation of Section 504 and Title II because the University did not make an individualized evaluation of the courses and lectures to determine whether the requested accommodation would, in fact, fundamentally alter the nature of the courses and lectures. Under the agreement, the University will:
- revise its policies and procedures relating to the provision of auxiliary aids and academic adjustments, specifically as to the documentation required for such accommodations and what constitutes a fundamental alteration of essential program requirements;
- train university academic administrators, disability services staff, and faculty regarding its revised policies and procedures; and
- offer to reimburse the student for expenses she incurred.
- Promoting FAPE (North Slope Borough School District, AK): OCR resolved this class-wide complaint, alleging that secondary students with disabilities enrolled in the District’s Alak School were denied a free, appropriate public education (FAPE) because there was no qualified special education instructor for them, resulting in the failure to implement the students’ individualized education plans. Under the resolution agreement, the District will:
- ensure that secondary students receiving services and/or related aids under an IEP or Section 504 plan have a qualified special education instructor;
- review and revise its Section 504 policies and procedures;
- provide staff training regarding Section 504 and Title II of the ADA;
- determine whether the students’ plans were being implemented during the 2017-2018 school year; and
- provide compensatory education services to the students.
- Facilitating Access to Sign Language Interpreters (Yadkin County Schools, NC): OCR resolved this complaint, which alleged that the District failed to provide interpreting services to a deaf complainant for a school play, thereby preventing him from understanding the production and participating in his daughter’s performance. Under the agreement, the District will:
- engage in proactive outreach by scheduling a meeting between the Executive Director of Student Services and the complainant to discuss best practices and resources for providing services to deaf and hard-of-hearing parents and community members;
- send a letter to all parents and guardians in the District who are known to be deaf or hard-of-hearing, informing them of the District’s legal obligations regarding effective communication, notifying them of the protocol for requesting an interpreter, and providing the contact information for the Teacher of the Deaf/Hard-of-Hearing who will serve as the point person for any questions or concerns relating to the provision of services for parents and guardians who are deaf or hard-of-hearing;
- disseminate a similar memo to all instructional staff and administrators in the District informing them of its legal obligation and protocol; and
- provide training to all instructional staff and administrators at the two high schools and leadership training for all principals and central office leadership in the District regarding effective communication and invite the complainant to participate in the trainings by attending in-person or submitting a video of 5 to 10 minutes that will be presented during the training.
- Clarifying the Role of Medical Assessments in 504 Plans (KIPP DC Public Charter Schools, DC): OCR resolved this class-wide complaint alleging that KIPP DC Public Charter Schools refused to complete a Section 504 Plan unless a student provided a letter confirming a diagnosis from an outside pediatrician or psychiatrist. The schools did not accept evaluations from school psychologists. Under the agreement, the District will:
- revise all relevant policies and procedures to indicate that a medical assessment is not required but, if the team makes an individual determination that a medical assessment is necessary to conduct a particular evaluation, ensure that the student receives this assessment at no cost to the student’s parent/guardian;
- provide training on the revised policies and procedures to all headquarters and school-level administrators and staff members who regularly participate in the Section 504 process and integrate this information into existing trainings, meetings, and other appropriate opportunities throughout the school year;
- conduct an administrative review of the education records of all students for whom an eligibility, evaluation, and/or reevaluation meeting was requested during the 2017-2018 school year to determine whether there are any students who were denied a plan and/or specific accommodations because they did not have a medical assessment;
- reconvene the team for each student identified through the administrative review to make an individual determination of whether the student is eligible for Section 504 services and whether compensatory services are appropriate; and
- notify each student’s parent/guardian that, if they obtained an outside medical assessment per the direction of school staff prior to the date of the notification, the schools will reimburse the out-of-pocket costs of the assessment.
- Providing Large-Scale Technical Assistance on Website Accessibility: Following the launch of the U.S. Department of Education’s Website Accessibility Technical Assistance Initiative on May 17, 2018, OCR hosted 3 webinars, witnessing participation of more than 3,000 individuals representing schools, districts, public and private four-year universities, community colleges, and trade schools. Participants came from communities of every size and hailed from 49 states, the District of Columbia, many U.S. territories, and some foreign countries.
This anniversary of the ADA serves as a reminder to rededicate ourselves to ensuring that all students—including those with disabilities—have equal access to education, and thus future opportunities.