# 157

II-5.2000
II-5.6000 December 19, 1994

Mr. Robert W. Nakoneczny

Superintendent of Schools
Boyne City Public Schools
P.O. Box 289
Boyne City, Michigan 49712

Dear Mr. Nakoneczny:

This letter responds to your recent inquiry on behalf of the

Board of Education of the Boyne City Public Schools (the Board)
regarding the changes necessary to bring its Middle School
Gymnasium (the Gym) into compliance with Title II of the
Americans with Disabilities Act of 1990 (ADA). We apologize for
any delay in responding to your letter.

The ADA authorizes the Department of Justice (the

Department) to provide technical assistance to individuals and
entities with rights or obligations under the Act. This letter
provides informal guidance to assist you in understanding the
requirements of the ADA. It does not, however, constitute a
legal interpretation and is not binding on the Department.

Title II of the ADA prohibits discrimination against

qualified individuals with disabilities on the basis of their
disability in services, programs, or activities conducted by a
State or local governmental entity such as the Board. A copy of
the regulation implementing Title II is enclosed for your
convenience.

In recognition of the fact that covered entities might

require some time to come into compliance with any structural
alterations required by the ADA, the Department's Title II
regulation requires covered entities to make such changes as
expeditiously as possible, but in no event later than January 26,
1995, three years after the effective date of Title II. Please
note, however, that with respect to existing facilities, the
focus of Title II of the ADA and its implementing regulation is
to ensure that, to the extent that the Board provides programs,
services, and activities to the public, they are readily
accessible to and usable by individuals with disabilities. The
concept of program access is discussed in Section II-5.000 of the
enclosed Title II Technical Assistance Manual.

Providing access to its programs, services, and activities

does not mean that the Board is necessarily required to make each
of its existing facilities accessible. In some situations,
providing access to facilities through structural methods, such
as the alteration of existing facilities and the acquisition or
construction of additional facilities, may be the most efficient
method of providing program access. On the other hand,
nonstructural methods, such as the acquisition or redesign of
equipment, the assignment of aides to beneficiaries, and the
provision of services at other accessible sites, may be
acceptable alternatives. For example, it may be possible to
relocate activities planned for the Middle School Gymnasium to an
accessible location, upon request. Thus, the Board may wish to
reevaluate whether structural alterations to the Middle School
are, in fact, necessary to achieve program access.

It appears, however, that the Board may have already gone

through this process and determined that, at a minimum, the
structural alteration described in your letter (the construction
of a "blockhouse type structure") is necessary to provide access
to the programs and activities conducted in the Middle School
Gym. We understand that the cost of constructing such a
structure is estimated to be $175,000, excluding architectural
fees and the cost of constructing an additional stairwell.

With respect to the costs of complying with the ADA, the

Board is not required to make alterations to its existing
facilities if it can demonstrate that the expense of making the
facilities accessible would result in undue financial and
administrative burdens. See 35.150(a)(3) of the enclosed Title
II regulation. Of course, when a public entity believes that
proposed physical alterations to its facilities would result in
undue financial and administrative burdens, the public entity has
the burden of proving that compliance with Title II's program
access requirements would result in such burdens.

The decision that any proposed alterations would result in

undue financial and administrative burdens must be made by the
head of the public entity or his or her designee after
considering all the resources available for use in the funding
and operation of the service, program, or activity. The decision
must be accompanied by a written statement of the reasons for
reaching the conclusion that undue burdens would occur. If
alterations to facilities would result in such burdens, the
public entity must take other actions that would not result in
such hardships but that would, nevertheless, ensure that
individuals with disabilities receive the benefits or services
provided by the public entity to other individuals. These
requirements are also explained in 35.150(a)(3) of the Title II
regulation.

As applied to the situation in the Boyne City Public

Schools, the ADA would require the Board to provide physical
access to the Middle School Gymnasium if such access is necessary
to provide individuals with disabilities the opportunity to
participate in the services, programs, or activities offered in
the Gym, unless providing such access would cause undue financial
and administrative burdens. If the Board determines that undue
burdens would arise, it must comply with the requirements
discussed in the two preceding paragraphs.

If the Board determines that making alterations to the Gym

would pose undue burdens, the ADA does not require it to close
the Gym. Instead, it may continue to operate the Gym, while
taking other measures (that do not impose undue burdens) to
ensure that individuals with disabilities receive the same
benefits and services as other members of the community.

If the modifications necessary to provide access to the Gym

would not impose undue burdens, and the Board does not wish to
make such modifications for other reasons, the Board may elect to
close the Gym. It should be emphasized, however, that the ADA
does not require the Board to close existing facilities. Rather,
it was carefully drafted to avoid placing undue burdens on State
and local governmental entities.

Finally, we note that limited Federal funding for barrier

removal may be available in some instances. Community
Development Block Grant (CDBG) funds, awarded to individual
communities by the Department of Housing and Urban Development,
can be used for the removal of architectural barriers.
Activities eligible for assistance include special projects
directed to the removal of barriers that restrict the mobility of
and accessibility of persons with disabilities.

You should be aware that each community establishes its own

priorities for the use of CDBG funds. Because the funds can be
used for a variety of priority projects, it is important that the
Board work with the local community to ensure that, if the
community is awarded a Block Grant, one of its priorities will be
the use of some of those funds for renovations to the Middle
School. Requests for CDBG grants may be sent to: Andrew Cuomo,
Assistant Secretary, Office of Community Planning and
Development, Department of Housing and Urban Development, 451 7th
Street, S.W., Room 7100, Washington, D.C. 20410.

We hope this information is helpful in responding to your

request.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

Enclosures (2)