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12117/93
SBO:MAF:LMS:ca:rjc
XX (b)(6)

DEC 17 1993

The Honorable Doug Bereuter


Member, U. S. House of Representatives
P. 0. Box 377
Fremont, Nebraska 68025

Dear Congressman Bereuter:

This responds to your recent letter in which you raise a


number of questions relating to the applicability of the
Americans With Disabilities Act (ADA) to certain activities of
religiously-controlled schools in the State of Nebraska and a
local government's duty under the ADA to provide program access
to its parks and other recreational services.

While title III of the ADA applies to private entities such


as private educational institutions, it does not apply
" ... to religious organizations or entities controlled by
religious organizations .... " 42 U.S.C. S 12187. As you noted
in your letter, this exemption includes religiously-controlled
schools. Thus, all the activities of a religiously-controlled
school are exempt under title III.

More specifically, however, your letter inquired about


possible interscholastic events held at religiously-controlled
schools in which students from both public schools and
religiously-controlled schools may compete in academic, cultural,
or athletic activities. In such situations, even though the
religiously-controlled school has no obligation under the ADA to
ensure that the events held at its facility are accessible to
individuals with disabilities, the affected public school
district does have such responsibilities.

Records, CRS, Chrono, Friedlander, FOIA, McDowney, Stewart


:UDD:Stewart.Bereuter.MOD
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Under title II of the ADA, a public school district must
ensure that its programs are accessible to individuals with
disabilities. As noted in our prior letter to you, the
Department of Justice's title II regulation, 28 C.F.R. Part 35,
adopts the concept of program accessibility for facilities
existing on the effective date of the statute, January 26, 1992.
See 28 C.F.R. S 35.149. In existing facilities, "[a] public
entity shall operate each service, program, or activity so that
the service, program or activity, when viewed in its entirety, is
readily accessible to and usable by individuals with
disabilities." 28 C.F.R. S 35.150(a).

The regulation provides, however, that a public school


district is not required "... to take any action that it can
demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial
and administrative burdens." 28 C.F.R. S 35.150(a)(3). The
decision that the alterations would result in a fundamental
alteration to the nature of a service, program, or activity or in
undue financial and administrative burdens must be made by the
head of the public school district or his or her designee after
considering all the resources available for use in the funding
and operation of the service, program, or activity. Id. The
decision must be accompanied by a written statement of the
reasons for reaching the conclusion that undue burdens would
occur. Id.

Thus, absent proof that the limitations stated in section


35.150(a)(3) exist, a public school district that provides
interscholastic academic, cultural, or athletic competitive
events with other schools, whether public or religiously-
controlled, must ensure that each of its interscholastic
programs, services, and activities, when viewed in its entirety,
is readily accessible to and usable by individuals with
disabilities. A public school district may not be meeting this
obligation to the extent that these activities are held
occasionally at inaccessible sites.

An illustration demonstrates this standard. A public school


district's high schools have debate teams. The public high
schools are part of a city-wide competitive debate league
composed of the public high schools and religiously-controlled
high schools in which the debate teams compete. Competitions
between the debate teams are held on a rotational basis at all
the member schools. some of the facilities at the religiously-
controlled schools are inaccessible. Absent evidence that the
limitations contained in section 35.150(a)(3) exist, if the
debate teams from the public schools are required to compete at
the inaccessible facilities of the religiously-controlled member
schools, the public school district may not be meeting its
obligation of program access. Although the religious schools are
totally exempt from coverage of the ADA, the effect of their
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inaccessibility on the public schools' obligation to provide


program access may, in fact, require the religious schools to use
an accessible location or risk the loss of public school
participation in the league.

With respect to your inquiry concerning the obligation of a


city to make each of its existing parks and recreational sites
accessible, the same standard discussed above would apply. The
duty under program access is to ensure that, when viewed in its
entirety, the city's parks and recreational program is readily
accessible to and usable by individuals with disabilities.

This obligation does not necessarily require a city to make


each and every park or recreational facility accessible. "When
viewed in its entirety" means that the location of the accessible
facility (or facilities) is comparable in convenience to those
facilities that are inaccessible, and the range of programs and
services offered at both is equivalent. For example, in the
situation described, if the area to be served is not so large as
to make travel to the accessible park and community center very
inconvenient for those individuals located on the outskirts of
the city, then the program access requirement would be met.
I hope this information is helpful to you in responding to
your constituents questions.

Sincerely,

James P. Turner
Acting Assistant Attorney General
Civil Rights Division

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