Despite the Americans with Disabilities Act’s (ADA) spirit of civil liberty, it has had a negative impact on public schools in most aspects because the opportunity for abuse is great when weighed against the procedure for relief from such abuse.
The Americans with Disabilities Act (1990)
The five titles of the ADA are designed to protect the civil rights of Americans with disabilities in (Title I) employment, (Title II) public transportation, (Title III) access to public buildings, (Title IV) communications and (Title V) miscellaneous areas such as anti-retaliation and coercion.
Definition of Disability
Amended in 2008, ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual”. “Major life activities” include performing manual tasks, communicating and many motor skills. Also included in major life activities are bodily functions, like immune system, respiratory and neurological function.
Title I Employment
While meant to ensure teachers, instructors, administrators and staff are afforded an equal advantage to jobs without regard to disability, ADA falls short. In the interest of accommodation, many school districts overlook disabilities which inhibit employees ability to perform for reasons varying from fear of discrimination law suits to budget constraints.
For example, a teacher may be left in a position to teach very young, active children despite a physical impediment which would preclude the teacher’s physical intervention to ensure the safety of the children. While the physical impairment does not affect the ability to teach the subject matter, it is rightly overlooked. Yet, considering teaching necessitates preserving the safety of students, such impairment should involve additional staff or a transfer to a position where such physical activity is not required.
With the aging population of teachers, the deficit of new teachers and budgets incapable of adding paraprofessionals, ADA opens the door for school districts to overlook the safety of students by simply neglecting to include safety oversight as a job requirement.
Title II Public Transportation
Public schools are compliant in providing transportation to disabled students, instructors and personnel according to the letter of the law: They provide appropriate transportation to all students regardless of disability. Notwithstanding such stellar compliance, the spirit of the law is routinely abused.
In an effort to conserve resources, many schools will bus children to a single location which is ADA-compliant, in terms of access to both facilities and services. This “separate but equal” treatment normally results in longer bus rides for disabled children than those available to their not-disabled peers, since school districts are financially unable to provide a full array of disability-geared services at every school location.
Title III Access to Public Buildings
One of the few ADA successes of public schools is access to buildings. Public schools, shy those with historical exceptions, must offer access to buildings to those with disabilities. Since 1990, schools have all been built to standard. All those which did not fit the historical building exceptions have been retrofitted with ramps, restrooms and other accommodations granting building access to those with disabilities.
Title IV Communication
ADA brought teletypewriter (TTY) and telecommunication devices for the deaf (TTD) machines to all public schools by requiring common carriers to offer the services. Communication between disabled consumers (parents, paraprofessionals and vendors) and public schools is uniform in this respect. All parties have equal access to announcements, policies and other school communications.
Public schools offer video materials with either closed captioning or sign language interpretation both in communication to consumers and in education of students. This offering is not required by ADA, but adheres to the spirit of the requirements for public service announcements.
Recent innovations have resulted in telecommunication relay services (TRS), speech to speech relay (STS Relay) and video relay services (VRS). While not as prevalent in the public school setting, certain districts provide these alternatives to those wishing to establish communication with the schools.
While this compliance is laudable, the loophole for students is very large. The Individuals with Disabilities Education Act (IDEA) provides for communication accommodations between students, staff and instructors. The ADA only provides protection for those wishing to communicate with the school, but fails to accommodate the children partaking in the school’s services.
Requiring telecommunication carriers to offer the services allows schools to take calls from hearing and speech impaired individuals without requiring the school to provide any equipment or service to their disabled employees or students.
The distinction of consumers in ADA offers ample opportunity for the public schools to discriminate against the, arguably, most important consumers. This gap is routinely dismissed in light of IDEA requirements and safeguards, but remains a glaring example of ADA’s failure to uniformly protect all Americans.
Title V Miscellaneous Provisions
The assorted provisions of Title V cover retaliation, coercion, wilderness areas, instrumentalities of Congress (i.e. Library of Congress), State immunity, exceptions and more. In very limited instances does this portion of ADA impact public schools.
Retaliation is the predominant impact of Title V of ADA on public schools. While difficult to prove, individuals with disabilities routinely file claims of retaliation in State and Federal courts. Such claims commonly allege schools which have failed to provide adequate access to buildings and services interfere with disabled individuals consumption after an initial complaint is made against the school.
ADA is often called a “paper tiger” with no clear-cut authority for enforcement and no substantial penalty for violations of its statutes. In fact, the authority to investigate and prosecute violations is clearly set forth at the end of each Title.
Individuals who feel they have been discriminated against have the right to seek relief in civil courts at the State and Federal levels. The penalties range from injunctive relief which enforces compliance to punitive fines of $50,000 or $100,000 per violation.
In terms of public schools, comparatively few suits are brought on ADA violations. Most complaints result in alternative resolution methods rather than civil suit, which offer far more punitive remedies than non-court resolution.
Alternative resolution often results in unenforceable compromises with no penalty for non-compliance. When the compromises not fulfilled, the violations they cover are no longer able to be pursued in court. This gives the ADA the “paper tiger” moniker.
The Bottom Line
While the act was intended to ensure that all students would have access to public education, all it has done is ensure their access to the building and transportation to public school. The majority of handicapped school children are not physically disabled, but are developmentally disabled. These disabilities are not protected by ADA to any extent.
The access ensured by ADA is complicated by the presence of IDEA. Overall, the ADA has done nothing more than lip service to addressing the educational needs of children with disabilities while providing public schools with a viable subterfuge to servicing the most vulnerable of students.