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ADA & Private Schools

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January 1, 2024 by Tom Roberts, Esq.

Title III of the ADA applies to Private Schools!

Private Schools – Public Accommodation by Definition

The statutory definition in the ADA states in pertinent part,  (7) Public accommodation. The following private entities are considered public accommodations for purposes of this title [42 USCS §§ 12181 et seq.], if the operations of such entities affect commerce—…(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education” 42 USCS § 12181  

Private School may not discriminate based upon a disability.

Under Title III of the federal Americans with Disabilities Act, it is illegal for private schools to discriminate based on disability. 42 U. S. C. § 12182 (a).  Specifically, the statute provides that “It shall be discriminatory to subject an individual . . . on the basis of a disability . . . to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” 42 U. S. C. § 12182 (b)( 1)(A)( i). The statute provides that discrimination includes “a failure to make reasonable accommodations in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U. S. C. § 12182 (b)(2)(A)(ii).

Examples of Duty to Provide Reasonable Accommodation for Disability

See Burriola v. Greater Toledo YMCA (W.D. OH 2001); Round Rock Indep. Sch. Dist. v. Amy M, 540 F. Supp. 3d 679, 695 (2021) (Allegations supported claim of violation of the ADA where school knew of student’s illness and recommendation of medical professionals for flexible schedule and homebound services which school repeatedly denied, and rejected excuses for absences). 

Federal ADA Laws is supreme in event of conflict with state statutes or school policies

A state or school’s mandatory attendance requirements are preempted by the ADA. The Supremacy Clause provides that federal law is supreme in the event of a conflict, and therefore any State interest in enforcement of its laws must comparably give way when they conflict with federal law. See, e.g., Lamone, 813 F.3d at 508 (explaining that “the mere fact of a state statutory requirement” cannot “insulate[] public entities from making otherwise reasonable  modifications to prevent disability discrimination”); Mary Jo C., 707 F.3d at 163 (“Title II’s reasonable modification requirement … requires preemption of inconsistent state law when necessary to effect a reasonable required modification.”). Similarly, ensuring that the ADA’s reasonable accommodation provisions are given effect notwithstanding contrary state law supports the public interests underlying the ADA itself, in “eliminat[ing] discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.” See Martin, 532 U.S. at 674; Seaman v. Virginia, 593 F. Supp. 3d 293, 328

Who is protected by the ADA?

A person is under a disability, if that person has a physical or mental impairment that substantially limits one or more major life activities, is a person who has a history or record of such an impairment, or is a person who is perceived by others as having such an impairment.

Title II of the ADA applies to Public Schools – Not to Private Schools without Government Funding

Private schools that do not receive any public funding are not required to provide Individual Education Plans (“IEPs”) or §504 plans, that provide very specific obligations to children with disabilities with their obligations under Title II of the ADA.  While Title II of the ADA applies only to “public” institutions, that is institutions receiving public funding.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


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