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Introduction to Title II


BACKGROUND OF THE ADA

The Americans with Disabilities Act of 1990 (ADA) became law on July 26, 1990, after approximately five years of intensive work on the part of legislators, persons with disabilities, and concerned citizens. It is arguably the most comprehensive formulation of the rights of people with disabilities in the history of the United States or of any other nation.

The ADA's impact can hardly be overestimated. More than forty million Americans have some kind of physical, sensory, cognitive, or mental disability. Virtually every individual and every family in the United States is touched at one time or another by the experience of disability--their own or that of someone close to them. The ADA's far-reaching provisions for employment, state and local government, transportation, public accommodations, and telecommunications, therefore, have the potential to benefit almost everyone.

AN OVERVIEW OF THE ADA

The ADA requires nondiscriminatory policies in institutions that serve the public, whether publicly or privately owned. In each area, it seeks to ensure that persons with disabilities are afforded the same rights as other American citizens. The ADA contains five titles.

Title I. Equal Employment Opportunity for Individuals with Disabilities

This title is designed to remove barriers that would deny qualified individuals with disabilities access to the same employment opportunities and benefits available to others without disabilities. Its provisions apply to employers with 25 or more employees

(effective July 26, 1992) and to those with 15 or more employees (effective July 26, 1994).

Title II, Subpart C, of the ADA addresses employment discrimination, but references Title I and Section 504 for specific requirements concerning employment. However, the Rehabilitation Act Amendments of 1992 amended Section 504 to incorporate the employment standards of Title I. As a result, __all public school districts, regardless of the number of employees, are subject to Title I

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_standards. The employment provisions of the ADA are enforced primarily by the Equal Employment Opportunity Commission (EEOC).

Note, however, that the Department of Education also investigates some Title II employment complaints. (See Chapter Eight, _Compliance _Procedures.)

Title II. Nondiscrimination on the Basis of Disability in State and Local Government Services

This title prohibits discrimination on the basis of disability by public entities. It is divided into two parts, the first of which deals with state and local governments and the second with public transportation. Provisions related to state and local governments are similar to those previously set forth under Section 504 for

public and private entities that receive federal funding; Title II extends that nondiscrimination mandate to _all public entities, regardless of funding status. The U.S. Department of Education's (ED) Office for Civil Rights (OCR) enforces Title II in public elementary and secondary education systems and institutions, public institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and public libraries.

Title III. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

This title prohibits discrimination on the basis of disability by private entities in places of public accommodation (such as hotels, cafeterias, golf courses, private schools, day care centers, health clubs and conference centers). Title III requires that all _new places of public accommodation and commercial facilities be designed and constructed so that they are readily accessible to, and usable by, persons with disabilities. It also requires that private entities that conduct examinations or courses for professional and trade licensing or certification provide equal opportunity to persons with disabilities.

Title IV. Telecommunications

This title requires telephone companies to have developed interstate and intrastate telephone relay services in every state by July 26, 1993. This third-party system allows people with speech and hearing impairments who use TDDs to communicate with individuals who do not have this equipment.

Title V. Miscellaneous Provisions

The final title contains a variety of provisions relating to the ADA as a whole, including its relationship to other laws and its impact on insurance providers and benefits. It also states that individuals cannot be required to accept accommodations and services

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against their will; clarifies the fact that states are not immune from actions relating to the ADA; prohibits retaliation and coercion against those exercising or seeking to exercise their rights under the ADA; and summarizes remedies and procedures. It establishes the role of federal agencies with respect to enforcement and technical assistance related to the ADA and extends coverage to the U.S. Congress. Where relevant to public entities, these provisions are incorporated in the Title II regulation.

THE SCOPE OF TITLE II

With the passage of the ADA, people with disabilities are, for the first time, assured of access to _all programs and services provided by state and local government agencies. Previously, under Section 504 of the Rehabilitation Act of 1973, as amended, only those public entities that receive federal funding were explicitly prohibited from discriminating on the basis of disability. But Title II prohibits _all public entities--even those completely independent from federal funding--from discriminating against people with disabilities. Title II is divided into two subtitles. This Guide focuses only on Subtitle A, which is implemented by the Department of Justice's Title II regulation at 28 C.F.R. Part 35. Subtitle B covers public transportation and is implemented by the Department of Transportation's regulation. Subtitle B provisions will not be addressed here. The use of the term "Title II" throughout this Guide actually refers only to Subtitle A.

28 C.F.R. ? 35.102 Application

(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public entities.

(b) To the extent that public transportation services, programs, and activities of public entities are covered by Subtitle B of Title

II (42 U.S.C. 12141) of the ADA, they are not subject to the requirements of this part.

The obligation to comply with Title II extends to all public entities, including:

All public school systems are required to comply with Title II because they are considered "instrumentalities" of the state government.

All programs, activities, and services of public school systems must be in compliance with Title II. Examples of activities covered include:

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Title II covers, for example, any public entertainment or lecture series your school system offers, after-school activities and social events offered by the school system, parent-teacher meetings, classroom activities, field trips or other special events, and all services provided for students or staff. Services provided by any private contractors on behalf of the school system must also comply fully with relevant provisions of Title II.

TITLE II AND OTHER LAWS

Section 504 of the Rehabilitation Act of 1973, as amended, prohibits discrimination on the basis of disability in any program or activity of state or local governments that receive federal funds. Title II of the ADA extends this prohibition to the full range of state or local government services, programs, or activities regardless of whether they receive any federal funding. With some exceptions, Title II does not impose any major new requirements on school districts. This is true because the requirements of Title II and Section 504 are similar, and because virtually all school districts receive federal assistance and have been required to comply with Section 504 for many years. (ED's Section 504 regulation, which is enforced by ED's OCR, applies to preschool, elementary, secondary, post-secondary, vocational, and adult education programs and activities, as well as other programs and activities that receive or benefit from federal financial assistance.)

The ADA statute clearly specifies that unless Title II states otherwise, Title II may not be interpreted to apply a lesser degree of protection to individuals with disabilities than is provided under Section 504. In the area of education, the federal government has stated many of the nondiscrimination requirements related to individuals with disabilities in more specific detail under Section 504 than under Title II. The reason for this difference is that the regulation issued to implement Title II was written to cover _all state and local government entities regardless of their function, whereas the regulation issued under Section 504 in 1977 was written to describe specific requirements applicable to public school districts, as well as certain other types of recipients of federal funds in the areas of education, health, and social services [34 C.F.R. Part 104; 45 C.F.R. Part 84]. Note, however, that if a rule issued under Section 504 imposes a lesser standard than the ADA statute or regulation, the language in the ADA statute or regulation controls. The chapters that follow will not only point out any differences between the requirements of Section 504 and Title II, but also highlight the more specific requirements of Section 504.

28 C.F.R. ? 35.103 Relationship to Other Laws

(a) _Rule _of _Interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.

(b) _Other _laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

The most important activity of any school district is providing elementary and secondary education to students. A school district must ensure that students with disabilities are not excluded from participation in, or denied the benefits of, its

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services, programs, and activities. It must also ensure that they are not subjected to discrimination by the school system [28 C.F.R. ? 35.130]. Equal educational opportunity to elementary- and secondary-school-age individuals with disabilities is achieved through the provision of a free appropriate public education (FAPE) to each qualified student with a disability in a school system, regardless of the nature or severity of the person's disability. The requirements regarding the provision of FAPE are detailed in the Section 504 regulation, but are incorporated in the general nondiscrimination provisions of Title II [28 C.F.R. ? 35.130; 28 C.F.R. ? 35.103(a); (see 34 C.F.R. ? 104.31-104.37)].

Because of this specific responsibility shared by all public school systems, in some cases it will be necessary to evaluate the school district's responsibilities under Title II with respect to individuals entitled to FAPE in a manner different from the evaluation of Title II responsibilities with respect to other individuals with disabilities (such as employees, parents of students, and the general public). This approach, of course, is consistent with Section 504, under which determinations regarding nondiscrimination in providing FAPE to school-age children are based on different factors than other types of determinations. Specific requirements related to FAPE will be discussed further in the chapters that follow.

Title II, like Section 504, requires covered entities to evaluate current policies and practices. However, the ADA does not require self-evaluations for all your school district's programs and activities. If your school system completed a self-evaluation as part of its obligations under Section 504, only programs not previously reviewed, or changes in programs and functions, must be evaluated. However, many Section 504 self-evaluations were conducted years ago; actions taken to comply with Section 504 may not have been fully implemented or may no longer be effective, and the scope of the covered program or activity may have been more limited than subsequently required by statute. Therefore, the U.S. Department of Justice and the U.S. Department of Education strongly encourage public school systems to conduct a comprehensive review of _all current programs. For example, fourteen years ago computers and computer technology would not have been a major part of most school systems' educational services. Now, however, this technology is of tremendous importance to most public schools and should be examined afresh in light of the Title II requirements.

Similarly, the transition plan required by Title II must cover structural changes to facilities to achieve program accessibility in parts of a school system's operation not covered by the Section 504 transition plan. If there are structural or other changes identified in your previous transition plan for Section 504 that have not been completed, these changes should be included as priorities in the Title II transition plan.

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Note also that the ADA does not in any way relieve public school systems from complying with any other state, local, or federal laws that bear on the rights of individuals with disabilities and that provide protection at least equal to that given under the ADA.

THE BUILDING BLOCKS OF TITLE II

The regulation implementing Subtitle A of Title II is divided into seven Subparts: (1) general, (2) general requirements, (3) employment, (4) program accessibility, (5) communications, (6) compliance procedures, and (7) designated agencies. The basic content of each of these will be noted briefly below. Not all of the distinct provisions of each section will be included in this brief overview, however. For more detailed information, consult the chapter in which that part is discussed (indicated at the end of each section summary).

General (28 C.F.R. ? 35.101-35.107)

This Subpart provides basic background on the law's purpose, its relationship to other laws, and key definitions essential to its interpretation. It also presents the requirement that public entities conduct a self-evaluation to determine whether they are in compliance, provide notice regarding the rights and protections afforded by Title II, and, if the entity employs over 50 persons, designate a responsible employee to coordinate the entity's compliance with Title II and establish a grievance procedure to handle complaints.

This portion of the Title II regulation is addressed primarily in this _Introduction (purpose, application, and relationship to other laws); in __Chapter Two, Who is Protected Under Title _II (definitions); and in __Chapter Three, Planning for _Compliance (designation of responsible employee, notice, grievance procedures, self-evaluation, and transition plan).

General Requirements (28 C.F.R. ? 35.130-35.135)

This Subpart of the Title II regulation addresses the basic mandate of the ADA: that is, that no qualified individual with a disability shall be excluded from participation in, or denied access to, programs or activities; denied benefits or services; or be subjected to discrimination by any public entity. Specifically, this section discusses the general prohibitions against discrimination, and provisions regarding the illegal use of drugs, smoking, maintenance of accessible features, retaliation or coercion, and personal devices and services.

Unlike Title II, the Section 504 regulation provides separate coverage for preschool, elementary, secondary, and adult educa-

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tion programs; post-secondary education programs; and health, welfare, and other social service providers under separate subparts of the Section 504 regulation. The general nondiscrimination provisions under Title II are construed to cover discriminatory conduct specifically prohibited under these subparts of the Section 504 regulation. Specific Section 504 requirements regarding elementary and secondary education programs, which are addressed throughout this Guide as they arise, should be kept in mind as you review your school system's programs, policies, and practices.

General requirements are discussed in __Chapter Four, General Nondiscrimination  Requirements.

Employment (28 C.F.R. ? 35.140)

Title II addresses employment discrimination, but references

Title I and Section 504 for specific requirements concerning employment. As mentioned on [print] page 1, the Rehabilitation Act Amendments of 1992 amended Section 504 to incorporate the employment standards of Title I. Therefore, __all public school districts are subject to Title I _standards.

The basic mandate of Title I is that an employer cannot discriminate against qualified individuals with disabilities in its employment policies and practices. For example, employers are required to make reasonable accommodations for qualified applicants and employees with disabilities upon their request, unless the employer can prove that providing the accommodation would result in an undue hardship. The Title I regulation prohibits discrimination in all aspects of employment, including recruitment, advertising, the application process, job classifications, position descriptions, testing, interviewing, hiring, assignments, evaluation, discipline, medical examinations, compensation, promotion, on-the-job training, leave, tenure, seniority, lines of progression, benefits (such as health insurance), social and recreational programs, layoff/recall, and termination.

Because public school systems that receive federal funds have previously had to comply with the old Section 504 employment standards, it is important to note that there are a few differences between Title I and Section 504 as it was interpreted prior to the Rehabilitation Act Amendments of 1992. Title I contains several provisions that were not previously included in the Section 504 regulation (e.g., provisions prohibiting discrimination on the basis of relationship or association and provisions regarding employee medical examinations and inquiries). Title I also provides several new definitions that were not previously provided in the Section 504 regulation, but that are based on Section 504 case law (e.g., definitions of "essential functions" and "direct threat").

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__Chapter Five, Requirements for Employment Policies and _Practices, provides a review of ADA employment requirements and highlights significant differences between Title I requirements and the employment standards of Section 504 prior to the Rehabilitation Act Amendments of 1992.

Program Accessibility (28 C.F.R. ? 35.149-35.151)

This Subpart of the Title II regulation addresses the requirement that public entities ensure that their programs and activities are accessible to, and usable by, persons with disabilities. The Title II regulation contains standards for existing facilities, as well as for new construction and alterations of facilities.

Although the general standards for accessibility under Title II and Section 504 are similar, there are significant differences in some areas that school districts need to consider as they conduct their self-evaluation (e.g., relevant time frames for existing facilities; actions resulting in a fundamental alteration of a service, program, or activity, or undue financial or administrative burdens; historic properties; transition plans; and new construction or alterations). School districts should pay particular attention to differences in relevant time frames for "existing" construction or new construction.

__Chapter Six, Program _Accessibility, provides a review of the Title II requirements regarding program accessibility, as well as a discussion of the similarities and differences between Title II and Section 504 concerning program accessibility.

Communications (28 C.F.R. ? 35.160-35.164)

This Subpart of the Title II regulation addresses the requirement that public entities ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. The Subpart addresses the responsibility of a public entity to furnish auxiliary aids and services. In addition, it sets forth requirements for providing TDDs, telephone emergency services, and information and signage. While the Section 504 regulation does contain a number of nondiscrimination requirements that, taken as a whole, result in an obligation to provide effective communication, the Title II regulation contains specific requirements that are not provided in the Section 504 regulation (e.g., requirements for TDDs and telephone emergency services).

__Chapter Seven, Requirements for Effective _Communication, reviews Title II requirements for effective communication and discusses differences between the requirements of Title II and Section 504 with respect to communication.

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Compliance Procedures (28 C.F.R. ? 35.170-35.178)

This Subpart establishes the administrative procedures for enforcement of Title II. It also states provisions related to attorney's fees, alternative means of dispute resolution, the effect of the unavailability of technical assistance, and state immunity. 

Provisions of this Subpart of the Title II regulation are discussed in __Chapter Eight, Compliance _Procedures.

Designated Agencies (28 C.F.R. ? 35.190)

This Subpart designates the federal agencies responsible for investigation of Title II complaints, distributing enforcement responsibilities for particular public entities among eight federal agencies. As discussed on [print] page 2, the Department of Education is designated to enforce Title II in public elementary and secondary education systems and institutions, public institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools, for which the Department of Health and Human Services is responsible), and public libraries. Complaints related to employment are referred to the Equal Employment Opportunity Commission (EEOC) or are reviewed by the Office for Civil Rights in the U.S. Department of Education.

Provisions of this Subpart of the Title II regulation are discussed in __Chapter Eight, Compliance _Procedures.

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