Experts Uncertain About Impact of Disabilities Act on Schools
A new federal law designed to break down barriers for disabled people could lead to changes in way the nation's public and private schools do business.
Unfortunately, legal and educational experts are not sure what those changes might be.
Hailed as a victory for the country's 43 million disabled people, the Americans With Disabilities Act essentially bars all forms of discrimination against the handicapped.
Most public and private employers, for example, will be prohibited from discriminating against the disabled in their hiring and promotion practices.
Also, "places of public accommodation" will have to make sure disabled persons can easily use their facilities and services. Organizations that fail to comply may find themselves vulnerable to lawsuits.
The new law, parts of which take effect on Jan. 26, is primarily targeted at private businesses and institutions, including private schools. For the most part, those entities have never been covered under previous laws banning discrimination against the disabled.
Most public schools, like all agencies that receive federal funds, already have to ensure they do not discriminate against the disabled under Section 504 of the Rehabilitation Act of 1973. Federal special- education law also requires schools to provide an "appropriate" education to students with disabilities.
The emphasis in the older laws has been on students. On the other hand, the Americans With Disabilities Act protects the rights of all disabled citizens, which raises a few new questions for public schools.
Will public schools, for example, have to make sure that graduation ceremonies are accessible to all those who come to watch? Will they have to make special accommodations for teachers or principals who suffer heart attacks and wish to return to work? Experts say the answers may have to come from the courts.
Moreover, some advocates for the disabled contend that many schools still have far to go in complying with the previous laws.
But the heightened awareness surrounding the Americans With Disabilities Act could force such schools to begin dealing with handicapped-access and discrimination issues for virtually the first time. While the new law may have no more teeth than its predecessors, its profile is much higher, according to experts. And parents and employees who may not have thought of lodging a complaint before may do so now.
"The time to pay attention is now," said James Gleich, the executive director of the Disability Rights Education and Defense Fund, which has already experienced an increase in disability-rights lawsuits aimed at schools.
"The bottom line," said Gwendolyn C. Gregory, the deputy general counsel for the National School Boards Association, is that "now is the time" for schools to make their programs and buildings accessible to the handicapped "if you want to prevent a lawsuit."
Nationally, experts disagree over what the new law means for schools. Some education groups, such as the National School Boards Association and the American Association of School Administrators, are counseling "business as usual." "We figure it's just an extension of opportunities for handicapped youngsters into the workplace," said Bruce Hunter, the senior associate executive director of the American Association of School Administrators. "for the life of me, I'm not sure what schools are going to have to do differently."
At the same time, however, consultants and organizations are organizing workshops and urging schools to pay closer attention to the new law than they may have until now. But Mr. Hunter suggested that some of those efforts may be an attempt on the part of those consultants to "drum up business."
Certainly, the new law was never intended to target schools. Most advocates and educational experts agree that schools have gone farther than other areas of society in accommodating the needs of the disabled.
Nevertheless, some advocates and consultants contend, there are good reasons for schools to take a hard look at their policies and practices now that the Americans With Disabilities Act is about to take effect. One such good reason, they say, is the law's new employment provisions. Where Section 504 focused on students, the A.D.A. brings new attention to the needs of disabled employees or job applicants.
Section 504 "didn't provide much protection for employees ever," noted Mr. Gleich.
The A.D.A. requires most employers, including schools, to provide "reasonable accommodations" to qualified potential or current employees. It is also more specific than Section 504 in spelling out the kinds of disabilities it covers. Recovering alcoholics or drug abusers who have received treatment are protected under the new law, for example. The law does not, however, ban drug tests for potential employees.
The law also provides protection for individuals who have a history of mental illness or who are recovering from cancer or a heart attack, as well as the more visible disabilities that traditionally come to mind.
The inclusion of those kinds of "hidden disabilities" in the new law could be especially important for schools because of their demographics, said Theodore O. Cron, the president of a foundation that specializes in helping people with chronic or debilitating illnesses return to the workplace.
"I'm not sure we're going to get a whole lot more people who are wheelchair-bound or blind into the schools," Mr. Cron said. "What we're talking about is heart attack, stroke, breast cancer, these kinds of more pervasive problems."
Mr. Cron noted that the average age of the nation's 2.4 million public-school teachers is 41--up from about 32 a decade ago.
"They are now in the age group where they are susceptible to all the chronic illnesses and disabilities the act covers," said Mr. Cron.
Moreover, he said, teachers and school administrators are also at high risk for depression and burnout, which are also considered disabilities under the new law. Under the A.D.A., employees with those afflictions may have a right to return to work as long as they can perform the "essential functions" of their jobs, Mr. Cron said. He said that might mean that administrators would have to take steps to accommodate those employees. In the case of a teacher recovering from cancer, for example, school administrators could be required to lighten the teacher's class load or provide help in moving heavy classroom furniture.
It would also mean, Mr. Cron said, that school officials may have to reevaluate what the "essential functions" of their employees' jobs are.
Section 504 and the Americans With Disabilities Act converge more closely in the area of architectural barriers. Both laws incorporate the same federal architectural standards.
Both require schools to make sure that any new construction is accessible to the handicapped, including for example, the installation of ramps or the widening of some doorways so wheelchairs can pass through. Similarly, alterations to older buildings would have to be barrier-free.
"Basically, whenever you touch something, make it accessible," said Julee Quarve- Peterson, a Minnesota architectural consultant who specializes in barrier-free designs, describing her rule-of-thumb for school districts in complying with access laws.
Where the two laws differ, however, is again in their emphasis.
"The Rehabilitation Act addresses program access," said Ronald Mace, a North Carolina architectural consultant who specializes in handicapped-access issues. "If you have a building with no elevator and the chemistry labs are on the second floor, you would have to find some way of making that lab program available to disabled students." "The A.D.A.," he continued, "has the stipulation that all things open to the public must be accessible."
Mr. Mace and other experts said that might include activities sponsored by private organizations that are held in schools, such as certain adult-education courses. Similarly, school-board meetings or other school functions held outside schools would have to be accessible.
"They have to take account of the disabilities of the general public that might attend," Mr. Gleich said.
For the most part, however, said Ms. Gregory of the N.S.B.A. schools have already made those kinds of changes.
"If an auditorium is not accessible to people who come in at night, it's also not accessible to kids," she said.
But even some education organizations concede that compliance with Section 504 has not been universal among schools. The 1973 law required schools to make a "self-evaluation" of the accessibility of their physical buildings, but it did not require them to make changes immediately. Most schools have been undertaking the changes called for in those plans, item by item, over the years.
Ms. Quarve-Peterson estimated, for example, that of the 42 reports on architectural access she has prepared for school districts in her state, half are collecting dust.
"There are a few exceptions, but I think the majority of those school districts have felt they haven't had any complaints, therefore things must be going fine," she said.
For districts, the cost of "catching up" now can be high.
The St. Paul school district, for example, estimates it could cost $4 million to $6 million to bring its facilities into compliance with both Section 504 and the A.D.A. The last time the Minnesota district evaluated its buildings for accessibility was in 1985.
"Our biggest problem was that, before 1985, we had 10 magnet schools and now we have 30," said Patrick Quinn, the executive director of planning and maintenance for the school system. "They represent a unique program and, under the Rehabilitation Act, they have to be accessible."
The plan would also revamp facilities in the school district used by the general public. Mr. Quinn said the school system plans to ask the state legislature this month for funds to do the renovations.
"It's certainly something we need to keep up with," he said. "The sort of general renewed awareness that we anticipate will accompany A.D.A. is going to spill over into schools."
By far, however, the law will have the greatest impact on secular private schools. Church-affiliated schools are exempt from compliance.
Not previously covered under the 1973 law, private schools may have to start from scratch in looking both at whether their facilities are accessible and at whether their employment practices are nondiscriminatory.
"What the law does not do is require [private] schools to provide a special-education program or change admissions standards," said James T. Kaull, the director of business services for the National Association of Independent Schools, which has 1,000 members. "It does mean schools should take whatever reasonable steps are required to accommodate a disabled applicant."
That might mean, for example, providing special aids or additional time for students taking an admissions test. If the student is then admitted, Mr. Kaull added, the school has "to make reasonable accommodation as long as that does not place an undue burden on the school."
But Mr. Gleich of the Disability Rights Education and Defense Fund said the question of admissions standards is "a fine line."
"There's some allowance for defendable standards, much like it is in employment," he said. "You have to be able to do the job."
"Where you have to be careful is in defining how to measure those standards and whether or not they're in accordance with the law," he added.
For private schools, Mr. Kaull of the N.A.I.S. said, the cost of making the architectural changes called for in the law may be minimal. He said barrier-free accommodations generally add about 1 percent to the cost of construction.
The biggest problem, he said, may be the confusion over what kinds of adaptions are required. Phrases such as "reasonable accommodation," "undue hardship," and "readily achievable," which are sprinkled throughout the law, while meant to provide some flexibility, have also been a cause for confusion over what the law means to schools.
"We have the same concerns as small businesses in that the law is puzzling because it uses terms like 'reasonable accommodation,'" Mr. Kraull said.
For the most part, several experts said, the full impact of the law will not be readily apparent until after Jan. 26, when disabled individuals who feel they have been discriminated against may begin to take legal action. The employment provisions of the new law do not kick in until July 26.
Disabled people who feel their rights have been violated can take one of two courses of action under the new law: They can either file a lawsuit or lodge a complaint with an appropriate federal agency. After investigating the complaint, the federal government can file a lawsuit against the offending organization or employer on behalf of the aggrieved individual.
The likelihood that schools that discriminate against the disabled will be sued is fairly high, experts say.
"A.D.A. has functioned as a consciousness-raising vehicle among parents," said Lex Freiden, the senior vice president of the Institute for Rehabilitation Research at Baylor College of Medicine in Houston. The institute is one of 10 federally funded centers around the country providing technical assistance to public and private organizations on complying with the new law.
Already, other advocates said, the kind of heightened awareness that led to the historic passage of the A.D.A. is spurring disabled individuals to pursue their rights under existing laws.
Mr. Freiden also said the center he directs has seen an increase in requests for speakers who can visit schools and provide perspectives on what it means to be disabled.
Moreover, unlike the Rehabilitation Act, which, for schools, is enforced by a single federal agency, oversight responsibility for the Americans With Disabilities Act is spread among several agencies. The Justice Department, the Transportation Department, the Equal Employment Opportunity Commission, and the Architectural and Transportation Barriers Compliance Board all will have a hand in overseeing the new law.
"One thing that is important from an enforcement standpoint is, if [schools are] not in compliance with 504 now, they're more apt to be caught," Ms. Gregory of the N.S.B.A. said, '"because there are more enforcement people and more watchdogs."
Vol. 11, Issue 17, Pages 1, 18Published in Print: January 15, 1992, as Experts Uncertain About Impact of Disabilities Act on Schools