Whether Title II of the ADA Applies to California Independent Private Schools
Title II applies to State and local government entities, and prohibits discrimination on the basis of disability in services, programs, and activities provided by such entities. Independent private schools in California are not entities of either California or local governments even though education is considered a state function in California. As such, CA private schools are not subject to title II of the ADA or the rules implementing title II of the ADA. Specifically, the rules implementing title II of the ADA are codified as part 35 of title 28 of the Code of Federal Regulations. California private schools are not subject to title II of the ADA or part 35 of title 28 of the Code of Federal Regulations.
Whether Title III of the ADA Applies to California Independent Private Schools
Title III of the ADA ("Title III") prohibits discrimination on the basis of disability in the activities of places of public accommodation and commercial facilities. Title III prohibits disability-based discrimination in the enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by the owner, lessor, lessee, or operator. Specifically, "a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education" is one of 12 enumerated types of private entity facilities considered to be "places of public accommodation" for purposes of Title III. Such schools are subject to Title III because private elementary and secondary schools are places of public accommodation Although private schools that are not boarding schools are likely within the definition of "commercial facility," all are clearly within the definition of "places of public accommodation," and are thus subject to Title III.
Overview of the changes to the law resulting from the 2010 ADA Standards of Accessible Design
The phasing in of the new requirements imposed by the 2010 standards for accessible design was an attempt to minimize the immediate impact and financial burden, and to allow public accommodations time to plan for making required changes. The effective date for compliance depends on the construction history of the property involved. The following outlines the different dates and standards that may apply to current, ongoing, or new construction: o Compliance with the 2010 standards is required for construction begun after May 21, 2012, and for alterations and barrier removal. o Between the rules publication date (September 15, 2010) and May 21, 2012, private schools may permissibly comply with either the 1991 or 2010 standards. o If any such school complied with the 1991 standards during any new construction or alterations, but fail to do so by May 21, 2011, then each such school will need to comply with the 2010 standards.
The Safe Harbor Provision
The regulations provide that if any private schools, or parts of such schools, were constructed in compliance with the 1991 standards, these schools do not need to come into compliance with the 2010 standards until they are subject to "planned alteration." The vast majority of new requirements are incremental changes subject to a safe harbor. All schools that are now in compliance with the 1991 standards will neither need to undertake further retrofits, nor require the services of a consultant to tell them to do so.
Requirements Not Subject to Safe Harbor Compliance Deadlines
Some requirements are clearly not subject to the safe harbor provision discussed above. The Department of Justice provided a list of the new requirements in the 2010 standards that are not eligible for safe harbor in the final regulations. Only those 2010 requirements that are "supplemental" (i.e. new to 2010 standards), are not eligible for the safe harbor provision. For the limited number of requirements in the final rule that are supplemental, such schools must determine whether they have an element that is covered by a supplemental regulation (e.g. a swimming pool), and then conduct any necessary barrier removal work. The following is a list of supplemental elements that essentially accelerate compliance obligations: Residential facilities and dwelling units; Amusement rides; recreational boating facilities; Exercise machines and equipment; Fishing piers and platforms; Golf facilities; Play areas; Saunas and steam rooms; and Swimming Pools wading pools and spas
Readilly Achievable Barrier Removal
The regulations direct that these areas must be modified to reach readily achievable barrier removal. Essentially, public accommodations must comply with the supplemental 2010 standards to the extent that such changes are "readily achievable," and public accommodations must remove physical barriers in each existing building or facility to the extent that it is readily achievable. "Readily achievable" is defined and informed by a five-factor analysis; however, something is essentially "readily achievable" if it is easily accomplishable and able to be carried out without much difficulty or expense. This obligation is commonly known as "readily achievable barrier removal," and has been in effect since January 26, 1992; public accommodations since that date have had an ongoing obligation to remove barriers in existing buildings and facilities.
The regulations make clear that operation, regardless of ownership, is the relationship between a private entity and a physical place that renders the entity responsible under Title III. Thus, all portions of the facility/campus/grounds of a covered entity must comply with Title III. If the pool of a covered entity is open to the public for use (as opposed to closed and inaccessible to all), the pool must comply with the barrier removal obligations arising under title III of the ADA. One could reasonably call the pools of covered entities that are open to the public for use "public pools;" however, such pools need not meet any further criteria or come within a separate definition of "public pools" to be subject to title III of the ADA. As discussed above, swimming pools are among the few elements as to which supplemental requirements were promulgated.