SURVIVING AN ADA ACCESSIBILITY AUDIT: BEST PRACTICES FOR
POLICY DEVELOPMENT AND COMPLIANCE
June 27 – 30, 2010
John H. Catlin, FAIA
Gigi McCabe-Miele, AIA
LCM Architects LLC
Chicago, IL
Irene Bowen, J.D.
ADA One LLC
Silver Spring, MD
Ellen M. Babbitt, J.D.
Babbitt, Land & Warner LLP
Chicago, IL
I.
INTRODUCTION

During the past 10 years, the Department of Justice has greatly increased its focus upon
ADA building and campus accessibility issues involving institutions of higher education.
Likewise, the Office for Civil Rights has remained active in addressing not only program
but also physical accessibility issues involving public institutions -- and parallel allegations
of failure to comply with Section 504 of the Rehabilitation Act.1

Many colleges and universities, however, exhibit persistent issues regarding barrier removal,
alterations to existing facilities, and construction of new facilities that fully comply with
applicable provisions of ADAAG and new ADAAG2 (as well as UFAS, FHA and local
building and fire codes).
1
Attachment A to this Outline sets forth citations and links to the statutes, regulations, and other authorities cited (as
well as to other useful resources about physical accessibility on campus).
2
References to "ADAAG" are to the Americans with Disabilities Act Accessibility guidelines published in 1991 by the
U.S. Access Board and adopted by the DOJ as the accessibility design requirements for new construction and
alterations of existing facilities. See 28 C.F.R. Part 36, Appendix A ("ADA Accessibility Guidelines for Buildings and
Facilities"). These guidelines (hereinafter "ADAAG") have been in effect since 1991, with some amendments but no
comprehensive revisions to resolve conflicts between ADAAG and other standards or to address issues on which
ADAAG is presently silent. On July 23, 2004, however, the Access Board published revised Accessibility Guidelines
(hereinafter "new ADAAG"), which seek to (a) eliminate or minimize conflicts between different accessibility
standards, (b) address elements that were not addressed in the original ADAAG, and (c) otherwise update the applicable
accessibility standards. On September 30, 2004, DOJ issued an advance notice of its intent to revise its ADA standards
consistent with the new ADAAG recommendations; but, although numerous comments have been taken and the matter
has been under advisement within the DOJ for years, the new ADAAG standards still have not been adopted by DOJ.
Until the DOJ formally adopts the new ADAAG standards, the original ADAAG standards, as amended, will remain
applicable. See Attachment A for citations to ADAAG and new ADAAG; see Attachment B for highlights of new
ADAAG as applied to higher education.
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
Some of this may arise from confusion about the physical accessibility requirements of the
ADA and Section 504. Many of our clients view all aspects of compliance as being
triggered only by an “accommodation request.” They fail to recognize that, under Titles II
and III of the ADA, as well as Section 504, institutions are subject to more extensive
obligations than the obligation, under the Title I “employment” provisions, to provide
reasonable accommodations to qualified employees upon request. Titles II and III, as well
as Section 504, apply to students, visitors, and the public. These laws place educational
institutions under a continuing obligation to improve campus accessibility and relocate
programs, and this is independent of a request for accommodation. In addition, programs
must be made accessible even if existing facilities cannot or need not be modified. For
instance, where a classroom is not presently accessible, classes will generally need to be
moved to an accessible location; students cannot be excluded from a program simply
because the building at issue is inaccessible.

In this session, architects specializing in ADA compliance, as well as attorneys who have
been involved in DOJ/OCR proceedings, discuss common issues and challenges for
institutions that seek to improve accessibility and avoid a DOJ, OCR, or private enforcement
action. This Outline and attachments supplement our conference presentation.

Section II below discusses the applicable legal and technical standards, the typical
accessibility issues that ADA accessibility experts identify on college and university
campuses, and the legal necessity – and value – of undertaking a comprehensive self-study
before a DOJ, OCR, or private complaint compels the institution to make extensive
modifications. Section III discusses recent developments in litigation, DOJ compliance
audits, and OCR investigations focused upon campus accessibility.

Finally, this Outline includes two attachments with further information regarding campus
accessibility. Attachment A compiles resources relating to physical accessibility in higher
education, including citations to statutes, regulations, technical assistance manuals, and
significant cases. Attachment B compares the DOJ’s current (1991 ADAAG) and proposed
(2004 new ADAAG) ADA regulations, highlighting their impact upon higher education.
These Attachments include links to websites that may prove helpful to institutions
addressing the challenge of ADA compliance and seeking to “survive an ADA audit.”
II. APPLICABLE STANDARDS; TYPICAL ACCESSIBILITY ISSUES ON CAMPUS
A. The Applicable Legal and Technical Standards

The two federal statutes prohibiting discrimination on the basis of disability (and, in
the process, addressing campus accessibility issues) are Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. §794(b)(2)(A)), and the Americans with
Disabilities Act, as enacted in 1990 and recently amended (42 U.S.C. §12131 et seq.).
Section 504 applies to colleges and universities that receive federal funding; Titles II
and III of the ADA apply to public and private entities, respectively.
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
Title II of the ADA prohibits discrimination on the basis of disability in all services,
programs, and activities provided to the public by state and local governments, except
public transportation services (42 U.S.C. §12131 et seq. and 28 C.F.R. Part 35). Title
III of the ADA prohibits discrimination on the basis of disability in "places of public
accommodation" (businesses and non-profit agencies that serve the public) and
"commercial facilities" (other businesses). (42 U.S.C. §12181 et seq. and 28 C.F.R.
Part 36). This includes nearly all colleges and universities.

Both Titles II and III require that new facilities, as well as altered spaces in facilities
where programs and services are located, must be made fully accessible consistent
with applicable design standards. Only Title III, however, requires removal of barriers
over time. Title II instead focuses on self-evaluation of programs and services. It also
emphasizes modifications or relocation of programs and services to make them
accessible; under Title II, the facility need not be altered unless all else fails and as
reasonable for the public entity. Likewise, Section 504 requires preparation of a
“transition plan” for achieving campus accessibility. With respect to existing facilities
(those constructed before 1977), Section 504 allows recipients to relocate programs or
services as a first choice in achieving accessibility, and it does not require structural
changes to existing facilities where accessibility can achieved through relocation of
programs and services. On the other hand, alterations and new construction, as with
Title II, trigger additional accessibility requirements under Section 504 (as addressed
by OCR in the Letters of Finding discussed in Section III-C below). See 34 C.F.R. §
104.22.

Under all of the applicable federal statutes and regulations, new construction must
conform to appropriate architectural standards for accessible construction. Which
standards apply depends upon the statutory provisions applicable to the institution and
to the particular elements at issue (which may not be covered under a particular set of
architectural guidelines). For instance, in addition to permitting compliance with
ADAAG, Title II allows, as an alternative, compliance with the Uniform Federal
Accessibility Standards (UFAS). For residential developments (i.e., student housing),
FHA standards apply along with UFAS standards. Local codes (state and municipal)
may employ other standards; ANSI (the American National Standards Institute) is the
most common standard used, but some states have their own standards. (See
Attachment A for links to various standards).

In all instances, the most stringent standard must be applied to any element, and
typically ADAAG and UFAS standards are the most stringent. ANSI is very similar to
current ADAAG standards but will be even closer to the new ADAAG provisions.
Few local and almost no state authorities evaluate facilities for compliance with
accessibility standards after construction.

Enforcement of the ADA and Section 504 is delegated by statute to private litigants,
DOJ, or other agencies (such as the Department of Education), depending upon the
circumstances in which a complaint arises and the identity of the complainant. For
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example, a student concerned that campus facilities are not physically accessible might
make claims under Title II, if the student’s institution is a public university; under
Title II and Section 504, if the public university also receives federal funding; under
Title III, if the student’s institution is a private university; or under Title III and
Section 504, if the private university also receives federal funding.

B.
Moreover, complainants have alternative avenues to pursue grievances. In the bestcase scenario, a student or visitor will bring an accessibility concern directly to the
attention of the institution, and the issue can then be successfully addressed internally
without further proceedings. Where internal processes are absent or seen as
inadequate, however, ADA or Section 504 claims may arise in a variety of ways. A
student complainant, for instance, might choose to bring such a claim to the OCR; go
straight to federal court; or, in some circumstances, bring a concern to the attention of
DOJ in the hopes of inspiring an investigation or the DOJ's intervention in pending
litigation. Enforcement can also arise through compliance audits initiated by DOJ or
OCR, either following complaints or upon the agency’s own initiative. And DOJ is
empowered to file suit on behalf of the United States or to intervene in private suits.
The lawsuits and OCR letters discussed in Section III below highlight the multiplicity
of allegations that may be made by DOJ, OCR, students or visitors to campus,
depending upon the nature of the institution.
Examples of Recurrent Accessibility Issues on Campus

The staff of LCM Architects has spent a great deal of time on college and university
campuses and at other institutions, evaluating accessibility compliance. Regardless of
whether the institutions’ facilities and walkways are old, renovated, or new, LCM has
identified some level of non-compliance with applicable ADAAG requirements or
other legal standards on every campus visited.

Some of the non-compliant elements render spaces, entrances, or walkways entirely
unusable by people with disabilities. Other non-compliant elements are barely
noticeable and most people (including disabled people) are able to use the noncompliant spaces. When a compliance audit occurs or a complaint is made,
however, institutions may be shocked to learn that these “usable” spaces do not
comply with applicable standards.

Many of the compliance problems that architects identify on campus will not be
noticed by people responsible for evaluating and ensuring compliance until there is a
complaint or a sudden need to make a particular space accessible for a particular
purpose. Then, modifications may need to be made immediately, displacing other
projects planned for a facility or space. These kinds of modifications will invariably
prove costly and disruptive.

Many administrators on campus – even those trained or responsible for accessibility
– may be unaware of the array of modifications needed to make facilities fully
accessible to individuals with varieties of disabilities. For instance, the fact that
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wheelchair users need ramps, smooth routes, lifts, and elevators is well noted and
addressed on most campuses. But even campus accessibility coordinators may not
recognize the need to place common elements within the building at a height that
makes them usable from a wheelchair. Thus, transaction counters, mailboxes, light
switches, towel dispensers in toilet rooms or in kitchens, coat hooks, coffee services,
and many other elements can be no higher or lower than an arm’s reach from a
wheelchair. All of these factors must be addressed, as well as the more “visible”
requirements of ramps and lifts, to render the particular building and space fully
accessible to a person using a wheelchair.
C.

Not only do campus administrators tend to overlook the level of needs, but they may
also overlook the variety of needs that must be addressed through accessibility
planning -- even with respect to a single architectural element such as a ramp.
Ramps are widely assumed by the non-disabled public to be used only by those with
wheelchairs. But, in fact, ramps are also widely employed by individuals who use
canes and walkers or need help walking. Because of this additional population of
users, ramps not only must have the proper slope and turn radiuses (for those who
use wheelchairs) but also must be fitted with properly-installed handrails and
handrail extenders (for those who may need support or something to grasp while
they stop and reorient themselves on the ramp).

Other recurrent campus accessibility issues may even be overlooked by informed
architects and decision-makers who happen to be focusing upon issues other than
accessibility. For instance, individuals with vision problems are often hit and injured
by objects that protrude from walls or posts. Indeed, even for a visually impaired
individual using a cane in an attempt to detect a route, some protruding objects may
be above the sweep of the cane and thus undetectable. Examples of protruding
objects include the simplest elements: wall sconces, paper towel dispensers in toilet
rooms and kitchens, the underside of a stairway, or low-hanging directional signs.
These raise issues for anyone with limited vision or cognitive difficulties and are
addressed in technical guidelines such as ADAAG. But, often, they are off an
institution's "radar screen" until a complaint is made or an injury occurs.
Legal and Practical Reasons to Undertake Self-Assessment Affirmatively

Self-assessment is required by certain provisions of federal law and highly advisable
to comply with the “barrier removal” and alteration provisions of Title III.
- Title II requires self-evaluation; Section 504 requires a transition plan for achieving
and improving accessibility on campus.
- Title III entities, while not strictly required to engage in self-assessment, may find
it extremely useful. As illustrated above, the complexity of compliance makes it
difficult for campus administrators, acting without expert assistance, to comply
with the full array of legal and technical requirements regarding barrier removal,
alterations, and new construction.
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
Self-assessment helps an institution integrate barrier removal, modifications, and
relocation plans into the institution’s strategic planning, budgeting processes, and
academic calendars.
- A self-assessment provides information that can be used to prepare a 5-10 year
plan for maintenance and renovations. A careful survey of the entire campus and
all facilities used by students and the public will identify elements that are noncompliant and allow the institution to establish priorities in barrier removal and
improvement of accessibility. It becomes possible to adopt a plan that addresses
the most important modifications first (and allows others to be managed in later
years or as part of upcoming renovation projects and campus upgrades).
- By allowing accessibility modifications to be incorporated into strategic plans,
self-assessment often saves money. If work can be scheduled and planned as part
of the institution’s normal renovation work, many non-compliant elements can be
corrected in the course of that work and in harmony with the budgeting process
and academic calendar. Moreover, modifications made as part of a deliberate plan
almost always cost less, and disrupt the institution less, than modifications
compelled in response to a complaint. Many of the compliance audits or litigation
in which LCM has been involved began with identification of a few non-compliant
elements (either by an agency during an audit or by a private complainant). What
then follows, however, is a necessary investigation of the entire campus. In such
circumstances, other non-compliant elements will inevitably be found and nearly
all of them will need to be corrected -- on a fairly aggressive schedule and at a
higher cost than would have occurred under a coordinated plan for barrier removal.
- Self-assessment can also help institutions develop effective plans for relocating
programs and services away from inaccessible areas of campus. Relocation
changes require planning, particularly where spaces are used by the public (and,
thus, where use and need may not be predictable). Effective relocation plans also
require accurate and updated information about how campus facilities are presently
being used and are expected to be used in the near future. Many institutional
decision-makers may be unaware of the actual uses to which different facilities and
buildings are being put. Self-assessment can prove an invaluable mechanism for
gathering updated information and using it to develop an effective relocation plan.

Self-assessment helps institutions anticipate and eliminate typical communication
problems and “information gaps” that often impede improvement of campus
accessibility.
- Capital planning or facilities personnel may not recognize or fully understand the
continuing barrier removal obligation or the requirement that alterations and
additions incorporate accessible elements. Even now, many architectural design
teams may believe that compliance with local code provisions ensures compliance
with ADA requirements, which is not necessarily the case. Self-assessment helps
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center, from the very inception of the project. It helps integrate the proper
standards into the planning, design, and construction phases of a project.
- Institutional decision-makers also may not communicate effectively within the
university about the need to integrate accessibility considerations into construction
planning -- particularly in alteration situations. Prior self-assessment helps the
institution avoid the unpleasant (but common) scenario in which an institution
engages in what are seen as piecemeal “maintenance” projects -- only to learn later
that these projects actually triggered the requirements of the ADA and require
additional, costly retrofitting. Moreover, both the ADA and Section 504
regulations (as well as ADAAG and UFAS standards) speak very specifically to
the need to incorporate accessible elements into altered spaces, and some aspects
of these requirements will not be well-understood absent a prior self-assessment.
For instance, 20% of an alteration budget must be used for accessible routes;
without prior self-assessment, many institutions would likely miss this requirement
completely during the planning and budgeting process.
- Other typical “information gaps” may be addressed, or their risks reduced, in the
process of securing a self-assessment. One, relatively unique to higher education,
is the tendency to handle academic “accommodations” and physical accessibility
issues through separate campus departments, and not to provide for effective
communication between these different offices. Particularly when admissions
offices are also involved in addressing accessibility issues for incoming students,
the potential for communication gaps between three different -- and often
autonomous -- campus functions is significant, and the repercussions can be very
unfortunate.
- For instance, an admitted student who uses a wheelchair may communicate with
Residence Life about needing an accessible dorm room but arrive on campus to
learn that she has been assigned to classes in an inaccessible building or at a
location with no accessible transportation. That student might reasonably believe
that the university had already received notice of her need for accessible classes
(and, it must be emphasized, that student was not actually required to request
accessible classroom facilities as an "accommodation"). These can degenerate into
truly unfortunate situations (see Kuchmas case, summarized in Section III-A
below), and they are not as rare as might be hoped. Self-assessments can help
institutions plan not only to eliminate non-compliant structural elements but also to
eliminate the communication gaps that, at their worst, can add up to a barrier to
access.

Institutions are sometimes concerned that a self-assessment will serve as an
“admission” in any later compliance audit or, at least, as a “roadmap” for the next
complainant.
- However, many institutions are already under an obligation to engage in some
level of self-assessment and to improve campus accessibility. Good faith attempts
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to comply with these requirements and use those results to improve campus
accessibility going forward will generally be viewed positively by agencies and
fact finders. As a practical matter, pro-active attempts to address obvious
accessibility issues will help institutions forestall injunctive actions and awards of
attorneys' fees (which are, as illustrated in Section III-A below, the primary legal
risks associated with defending against accessibility allegations).
- The institution should be prepared, however, to address promptly any clear or
serious departures from accessibility requirements that are identified in a selfassessment. Failure to address serious lapses will count against the institution in
any later compliance audit or lawsuit (whether the non-compliant elements are
identified in a prior self-assessment or at the time of the audit or legal challenge).
III.
LITIGATION AND ENFORCEMENT UPDATE3
A. Litigation
Michigan Paralyzed Veterans of America v. University of Michigan, No. 07-11702 (E.D.
Mich. 2007):

A group called “Michigan Paralyzed Veterans” (“MPVA”) sued challenging the
accessibility of the University of Michigan’s football stadium for individuals with
mobility impairments. The Department of Education, through OCR, also investigated a
complaint about the same matter and, in October of 2007, issued a formal findings letter
concluding that the University had violated Section 504 and the ADA (as further
discussed in Section III-C below). After unsuccessful attempts to resolve the matter
within the OCR, the matter was referred to DOJ, which intervened in the MPVA
litigation on behalf of the plaintiff organization.

In its complaint, DOJ alleged that the University discriminated against individuals
who use wheelchairs because the Michigan stadium allegedly failed to comply with Title
II of the ADA and Section 504.
- Specifically, because the University had added to and altered its football stadium over
the past 16 years, DOJ alleged that federal law imposed additional accessibility
requirements with regard to stadium seating that had not been met. Extensive repairs
to the stadium concrete, as well as changes and additions to the stadium’s seating,
allegedly required the University to comply with the UFAS “alterations/additions”
standards and required that wheelchair/companion seating be increased and that
dispersal of the seating be improved. Furthermore, according to DOJ, the University’s
plans to add wheelchair seats to the luxury boxes and suites as part of its upcoming
multi-million dollar renovation would not remedy this problem; the planned additions
3
Sections III-A & B of this Outline update an outline originally prepared by NACUA member Andrea M. Gunn for the
NACUA March CLE in 2009. That Outline (entitled “What You Don’t Know Will Cost You: Facilities Access Under
the Americans with Disabilities Act and Section 504”) is available to NACUA members at the Legal Resources Service
area of the NACUA website. We appreciate Andrea's excellent work on that Outline.
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allegedly were already required to make that portion of the stadium accessible and did
not resolve present seating violations in other sections of the stadium.
- DOJ also alleged that the stadium failed to meeting the accessibility requirements
for existing facilities in that (i) the football stadium lacked sufficient accessible
wheelchair seats, (ii) accessible wheelchair seats were not dispersed around the
stadium, (iii) the University had failed to provide accessible ramps and routes into and
around the stadium, and (iv) the stadium lacked accessible toilets, concession stands,
souvenir shops, parking, and signage.
.
The parties resolved the lawsuit, and the court approved a consent decree in March of
2008. Pursuant to the decree, the University – which was in the midst of a $226
million expansion of the stadium – agreed to add over 300 wheelchair and
companion seats during the next two years. (Prior to this planned addition, the
stadium had 81 pairs of wheelchair and companion seats, all located in the end
zones; the majority of the new seating was to be located on the sidelines).

The University also agreed to a significant modification of its ticketing policies for
wheelchair and companion seats for a two-year period following the time that each
accessible seating area became available. This was intended to help ensure that
individuals who use wheelchairs would be afforded a meaningful opportunity to
purchase these preferred seats. The University also committed to adding accessible
parking, improving inaccessible toilet rooms, and providing accessible routes to and
throughout the stadium.
Jackson, et al. v. California State University, San Bernardino, et al., No. 05-1110-VAP
(C.D. Cal. 2005):

In late 2003 and early 2004, a number of CSUSB students filed written complaints
with the University’s Students with Disabilities office (SSD). These complaints
focused on a variety of academic accommodation and auxiliary aid issues, but they
also included facilities access issues relating to restrooms, computer labs, parking,
and accessible furniture. CSUSB formed a Task Group to address the students’
concerns. In September of 2004, the Task Group issued a 55-page report. Although
the Report generally concluded that the campus was in compliance with applicable
regulations and policies, the Task Group identified ways in which the SSD program
could improve its service delivery, and the University began implementing these
recommendations.

Before the Task Group’s final report was published, however, CSUSB student Krista
Dixon filed a complaint with OCR, making the same allegations as those being
evaluated by the Task Group. OCR conducted an extensive investigation over the
next two years. Prior to the completion of OCR’s investigation, CSUSB began
negotiating with OCR to resolve the complaint. A Resolution Agreement was signed
in mid-July of 2006 by CSUSB and OCR. The Agreement called for modifications to
restrooms in thirteen campus buildings, as well as modifications to selected campus
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computer labs and faculty offices and designation of additional accessible parking
spaces. OCR also issued a 31-page letter in July of 2006, finding violations of Title II
and Section 504 in selected campus facilities.

During the pending OCR investigation, a group of students, including Krista Dixon,
also sued CSUSB, filing a federal-court class action suit in December of 2005. They
raised claims under Title II and Section 504, as well as under California’s state
disability laws. The parties eventually hired experts who completed comprehensive
surveys of the campus and issued reports identifying a number of architectural
barriers on campus.

Following mediation, the parties settled in July of 2007, incorporating into the
settlement agreement resolutions of many of the issues aired in the OCR letter, the
Task Group report, and the lawsuit. A central part of the settlement was a
compromise transition plan developed by CSUSB. The plan called for approximately
$11.7 million in state and non-state access upgrades and barrier removal projects. The
settlement agreement provided that the transition plan would be fully implemented by
2016. The agreement also obligated CSUSB to survey certain buildings constructed
since 2000 to ensure compliance with state and federal access laws and to ensure
compliance going forward for new construction and alteration work.

Pursuant to this settlement, plaintiffs’ lawyers received fees and costs in the amount
of $505,000, and the nine individual plaintiffs received a total of $315,000 in damages
(approximately $35,000 each). The agreement called for periodic compliance reporting
and monitoring. The court approved the settlement in November of 2007 and will
maintain jurisdiction to enforce the agreement until 2013, unless the University’s primary
obligations under the agreement are completed in advance of that deadline.
Huezo v. Los Angeles (Pierce) Community College, No. 04-9772 (C.D. Cal. 2004):

Plaintiff Huezo was a mobility-impaired student attending Pierce Community College
in 2004 when he filed suit under Title II and Section 504, alleging a failure by the
College to provide accessible furniture, parking, restrooms, and paths of travel.

After the parties were unable to resolve this matter through negotiation, the court
granted partial summary judgment in favor of Huezo in February of 2007. The court
found, among other things, that the College’s failure to prepare a self-evaluation or
transition plan was itself evidence of discrimination. The court also found merit in
Huezo’s access barrier claims and ruled that the College’s policy of requiring
disabled students to identify and then seek an individual “accommodation” for each
barrier constituted disability discrimination.

Following entry of partial summary judgment, the parties reached an agreement to
settle Huezo’s claims for damages and attorneys’ fees (which already amounted to
approximately $1 million); they also agreed that the parties would work together to
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resolve the injunctive relief issues. Apparently, those issues could not be resolved,
however, whereupon Huezo moved for a permanent injunction.

An injunction was then granted in December of 2008. In that order, the court ordered
the College to (i) provide accessible desks, workstations, and other equipment with
appropriate signage within all classrooms being used during a given semester; (ii)
engage an ADA accessibility expert to oversee the progress of corrective work, help
implement modified ADA policies, and oversee placement of accessible furniture and
workstations; (iii) cease charging disabled students for parking permits to use the
teachers’ parking lots and keys to the library elevator; (iv) provide regularly
scheduled shuttle service for disabled students; (v) update the Special Services
Student Handbook to reflect these changes; and (vi) publicize the existence and
availability of the Handbook as a resource for disabled students.
Kuchmas, et al. v. Towson University, et al., No. RDB 06-3281 (D. Md. 2006):

In 2006, Mark Kuchmas, who uses a wheelchair due to a degenerative neuromuscular
condition, filed suit under the Fair Housing Act, Titles II and III of the ADA, and
Section 504 after he discovered he was unable to use the bathroom and shower area
or maneuver around the desk in an ostensibly accessible housing unit in the
University’s Millennium Hall. Kuchmas later amended his complaint to include four
additional plaintiffs – two Towson students who do not use wheelchairs, a lecturer,
and a local not-for-profit fair housing organization.

The University and co-defendants agreed to settle the lawsuit and entered into a multiparty consent judgment filed in September of 2008. Pursuant to this judgment, the
developer (whose subsidiaries managed the dorm at issue) agreed to pay Kuchmas
$50,000 in damages and $250,000 for attorneys’ fees and costs. The developer also
promised to provide Kuchmas with four academic years’ worth of free and accessible
campus housing, as well as any tuition owed beyond scholarships and non-loan financial
aid that Kuchmas was able to secure.

The developer also agreed to a long list of renovations and retrofits to Millennium
Hall and a neighboring dorm, West Village (where Kuchmas planned to live when he
returned to campus). The modifications included lowering counters in the common
areas of both buildings and clearing wall-mounted equipment that would obstruct
wheelchair passage. The developer also agreed to consult an accessibility expert
before undertaking any projects in the State of Maryland over the next four years.

For its part, the University guaranteed Kuchmas admission to the school and selected
other modifications and accommodations (including accessible transportation to
class). The four co-plaintiffs also received settlement payments of $1000 (for the fairhousing organization) and $500 (for each individual plaintiff).
Gufstafson, et al. v. University of California at Berkeley, et al., No. 97-4016 (N.D. Cal.
1997):
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
Plaintiffs were a class of UC-Berkeley students with various mobility and vision
impairments. They alleged violations of Section 504 and Title II, as well as selected
provisions of the California Civil and Government Codes. In an effort to settle the
case, the parties jointly selected a panel of experts who cooperated in (i) a
comprehensive survey of the campus facilities; (ii) a review of policies and practices
that allegedly impacted access; and (iii) an interview process to identify possible
barriers to access (including interviews of students with disabilities).

The experts then submitted to the University and complainants a joint set of
recommendations for barrier removal, policy changes, and access improvements.
The parties subsequently negotiated a class action settlement to implement these
recommendations.

Under the settlement agreement, which was approved by the court in 2005, UCBerkeley agreed to remove thousands of barriers throughout its facilities, with a
focus upon building entrances and restroom renovations. The settlement also
mandated the hiring of an Assistant Provost, Office of Equity Standards and
Compliance, with responsibility for providing campus-wide leadership in disability
services. To support the new Assistant Provost, the University also hired a full-time
Physical Access Coordinator and a full-time Disability Access Resolution Officer, as
well as an additional Access Specialist to serve as the primary point of contact for
students with mobility or vision impairments. Other provisions of the agreement
called for enhanced transportation opportunities for disabled students; the University
specifically agreed to replace its fleet of shuttle buses with 16 newer, wheelchairaccessible vehicles.

The agreement also provided that the court would retain jurisdiction until 2019 and
that the University would undergo periodic monitoring by an outside panel of
experts and by plaintiffs’ attorneys. The parties agreed to damages in the amount of
$24,000, with attorneys’ fees and costs of over $660,000. The agreement also
provided that the University would absorb monitoring fees and costs of up to $300
per hour (not to exceed 90 hours a year). This potentially added over $375,000 in
additional fees and costs over the life of the agreement.
Cherry, et al. v. City College of San Francisco, et al., No. 04-4981-WHA (N.D. Cal. 2004):

Plaintiffs were a class of students with mobility impairments that sued for alleged
violations of Title II and Section 504, ranging from allegedly non-compliant paths of
travel and building entrances to failure to make classrooms, restrooms, and “common
elements” (such as furniture) accessible.

In 2006, as part of a settlement and stipulated judgment resolving the matter, the
College agreed to expend no less than $7.5 million to make specific and substantial
structural access improvements to existing facilities. The focus of the improvements
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included paths of travel, building entrances, restrooms, and a requirement that no less
than 30% of all standard classrooms, computer labs, and basic science labs be
accessible, including the provision and placement of accessible furniture. The College
also agreed that, should it complete the itemized mandatory improvements for less
than the $7.5 million minimum amount allocated in the agreement, the College would
continue making other accessibility improvements until it had spent the full $7.5
million.

The stipulated judgment incorporated a detailed schedule of maintenance and
corrections work. It also mandated that the College maintain a full-time ADA
Coordinator on staff, and it required periodic compliance reporting to the court and
monitoring by an outside expert.

Pursuant to the stipulated judgment, the College agreed to pay attorneys’ fees and
costs in the amount of $1,660,000, and it also agreed to absorb monitoring fees and
costs of up to $20,000 per year for a period of four years. The named plaintiffs
received a total of $40,000 in damages. The court retained jurisdiction (and, pursuant
to a recent order, its retention of jurisdiction will continue through October 1, 2010).
Covington, et al. v. McNeese State University, No. 08-505 (La. App. 2008):

Covington was a mobility impaired student with a history of seizure disorders. In
2001, she filed suit in state court under Title II and state disability laws, alleging that
she was injured while exiting a non-ADA compliant restroom located in the
University’s student union.

Covington successfully moved for summary judgment. The trial court found, among
other things, that the University was not entitled to sovereign immunity under the
Eleventh Amendment, that the plaintiff was disabled, and that the University had
discriminated against her. In its order, the court ordered the University to make
specific changes to the student union building.

The University appealed, but the decision was affirmed. While the appeal was
pending, DOJ also launched an investigation into the accessibility of the University’s
campus. As of July, 2009, the University had sought from the State more than $8
million in capital outlays, in order to respond to findings by DOJ and a consultant that
the campus needed extensive barrier removals and modifications to comply with
applicable federal and state laws.
Sabino v. The Ohio State University, No. 2:09 CV 544 (S.D. Ohio, filed June, 30, 2009):

A deaf fan of Ohio State University filed suit under Title II and Section 504, seeking
captioning for announcements made over public address systems before, during, and
after OSU events, such as basketball and football games.
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
Although the case was still pending as of the date this outline was prepared, with the
University’s motion to dismiss awaiting decision, the University reportedly is now
providing captioning on video boards and selected television monitors throughout the
concourse area. See also Feldman v. Pro Football, Inc., No. AW-06-2266 (D. Md.
September 30, 2008) (a similar case involving attempts to obtain captioning on video
boards at Fed Ex Field).
B. DOJ Compliance Reviews and Settlement Agreements4:
University of Chicago and Colorado College (2006):

In 2006, following compliance reviews, DOJ reached settlement agreements with the
University of Chicago and Colorado College that address an array of physical
accessibility issues, particularly those that impact students and visitors with mobility,
hearing, and vision disabilities. Pursuant to these agreements, which are very similar,
the institutions agreed to do the following:
- Submit to the DOJ (after allowing public comment) a proposed Physical Access
Plan, outlining plans to comply with the settlement agreement and increase
accessibility on campus;
- Make certain changes to facilities, paths of travel, and policies in accordance with
the provisions of their respective Plans;
- Implement campus-wide emergency evacuation, sheltering, and shelter-in-place
plans for individuals with disabilities, following public comment and DOJ review;
- Ensure that three percent of the units (and adjacent toilet rooms) in student living
facilities are accessible and dispersed among the facilities, and that a reasonable
number of housing facilities has an accessible entrance, first-floor common area,
and toilet room usable by a visitor with a disability;
- Display information on their websites identifying accessible routes through the
campuses, parking areas, entrances to buildings, and spaces within buildings;
- Post signs at facility entrances and toilet rooms identifying those that are
accessible; and, at inaccessible entrances or toilet rooms, post signs directing
individuals to the nearest accessible entrance or toilet room;
- Provide assistive listening systems and devices for people who are deaf or hard of
hearing in lecture halls, meeting rooms, and other assembly areas;
- Relocate classes and other activities to fully accessible locations when necessary;
The settlement agreements referenced in this section are cited in Attachment A and also posted on the DOJ’s website
at "www.ada.gov."
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- Correct violations of the accessibility standards for new construction.
- The University of Chicago also agreed to ensure that its transportation services,
including its fixed-route campus-wide bus system and on-call evening and nighttime service, comply with the ADA.
Swarthmore College (2007):

In 2007, DOJ reached a settlement agreement with Swarthmore College, pursuant to
which the College agreed to make its campus and services more accessible to
individuals with disabilities. This agreement resulted from a compliance review
during which DOJ identified alleged barriers to access in existing facilities and noncompliant elements such as doors, restrooms, seating, signage, and interior and
exterior circulation routes.

The agreement encompassed a wide variety of services and facilities, as well as
commitments relating to parking, directional signage, and emergency preparedness.
It contained many of the same provisions found in the University of Chicago and
Colorado College agreements.
EDMC (2008) and Intellitec Colleges (2009):


Educational Management Corporation (EDMC) is a private, proprietary corporation
that operates the Brown Mackie College system of schools with locations in 10 states.
In 2008, DOJ reached a comprehensive settlement agreement with EDMC. This was
DOJ's first agreement with a proprietary school, and it was also DOJ's first agreement
involving buildings leased, rather than owned, by an institution of higher education.

The EDMC agreement followed a compliance review for physical accessibility under
Title III. The alleged violations included inaccessible doors, building entrances,
restrooms, and paths of travel.

The EDMC agreement states that both the lessor and lessee have responsibilities
under the ADA and sets forth a detailed schedule of maintenance and corrections
work to be undertaken by EDMC. It also requires EDMC to give the landlord a list of
issues and also to request physical modifications to areas where EDMC does not have
exclusive control. EDMC is obligated to inform DOJ if agreement between the two
entities is not reached. The agreement also requires EDMC to designate an ADA
Compliance Officer, hire an ADA Consultant, and allow DOJ to conduct spot-check
inspections and obtain records access and compliance documentation.
Intellitec Colleges, another proprietary institution that became the subject of a DOJ
compliance review, entered into a settlement agreement in 2009. Intellitec offers
career training programs for automotive technicians, medical and dental assistants,
and administrative professionals (among other programs) at three Colorado campuses.
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The agreement that DOJ reached with Intellitec was similar in many respects to the
agreement reached between DOJ and EDMC.
C. Selected OCR Letters

OCR is responsible for enforcing accessibility requirements at institutions that receive
federal financial assistance, pursuant to Section 504 of the Rehabilitation Act of 1973
and implementing regulations (see 29 U.S.C. § 794 and 34 C.F.R. Part 104). OCR
also has jurisdiction over student accessibility complaints brought under Title II of the
ADA (42 U.S.C. § 12131 et seq.), which prohibits discrimination by public entities.

The most significant OCR letter regarding physical accessibility is the University of
Michigan letter of findings dated October 26, 2007 (which formed the basis, in part,
for DOJ’s complaint in the MPVA case, discussed in Section III-A above). The
following is a discussion of the OCR’s University of Michigan letter, followed by brief
summaries of selected other OCR letters regarding physical accessibility.
The University of Michigan (2007):

In 2005, OCR initiated an investigation of alleged Title II and Section 504 violations
in and around the University of Michigan’s stadium. Complainants using wheelchairs
challenged the number, location, and dispersal of wheelchair-accessible seats; the
accessibility of routes into and within the stadium; the number and accessibility of
restrooms; and the accessibility of concession stands and souvenir shops.5

Much of the dispute in the University of Michigan case revolved around whether
renovations to the stadium concrete and seating over the past few decades had
constituted additions or alterations requiring that the altered areas be made accessible
under UFAS standards (which include, for instance, specific numerical and dispersal
standards for stadium seating). In addition, OCR addressed whether the stadium
complied overall with the “program access” requirements applicable to existing
facilities. Both Title II and Section 504 require that an educational institution operate
each service, program, or activity so that, viewed in its entirety, that activity is readily
accessible to and usable by individuals with disabilities. These same statutes and
regulations require that the service, program, or activity be offered in the most
integrated setting appropriate.

OCR concluded that, by engaging in periodic stadium and seating reconstruction
projects (including the addition of approximately 7000 seats between 1991 and 1998),
the University became subject to UFAS requirements for the altered or added spaces –
This letter recounts OCR’s findings of violation, as well as OCR’s version of the extensive procedural history that
preceded this particular investigation. It should be noted that, unlike in the other OCR matters summarized herein, this
OCR investigation did not result in a negotiated resolution; on the contrary, the University of Michigan strongly
disputed OCR’s conclusions. The DOJ eventually intervened in the MPVA case on behalf of the plaintiff organization
and a settlement was negotiated (as summarized in Section III-A above).
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and fell short of complying with specific UFAS standards regarding the number of
accessible seats and dispersal of accessible seating throughout the stadium. OCR
found that the stadium’s wheelchair seating was grouped together in one section,
which was always crowded; that this section lacked sufficient companion seating
options; and that the stadium’s wheelchair seats were grouped in undesirable locations
near the end zones, away from preferred sight-lines. Moreover, according to OCR, no
wheelchair seating was located in what were widely viewed as “preferred” sections on
the sidelines, and the press box and “Regents” area (where VIPs were invited to sit)
were not accessible. OCR also noted that wheelchair-users who wanted to exchange
tickets for more favorable locations would have trouble doing so because the “WillCall” ticket area was inaccessible.

In addition, OCR found non-compliance in the parking and paths of travel to the
stadium, as well as in paths of travel and restrooms within the stadium. OCR also
found that newly-constructed souvenir shops and concession stands had not been
constructed to comply with UFAS standards and were not accessible. On the basis of
the above, OCR concluded that the University had failed to comply with applicable
design standards for alteration of facilities and with program access requirements for
existing facilities. In the process, OCR rejected the University’s arguments that it was
meeting verifiable need and use requirements and that the stadium was not subject to
“alteration” standards.
 This OCR letter is useful to review because it articulates at great length the OCR’s
position regarding the applicable Title II and Section 504 standards for existing
facilities and altered or added elements. In particular, this letter offers insight into how
OCR believes these concepts play out in the context of stadiums and sports programs,
which present unusual issues both with respect to alterations and also with respect to
program relocation (which usually is not an option in the context of sporting events).

As noted in Section III-A above, the issues in this OCR investigation became a part of
the MPVA litigation against the University, and the resolution in that matter also
encompassed the issues addressed in this OCR letter.
Other OCR accessibility determinations:

Lufkin School District (2009 NDLR LEXIS 493; 40 NDLR 125):
- In this OCR matter involving a public school district, the complainants made a
claim similar to that addressed by OCR in the University of Michigan stadium
case. These complainants alleged failure by the school district to make elements in
a high football stadium – specifically, the parking, seating, and paths of travel into
and within that stadium -- accessible to users of wheelchairs. The complainants
also alleged that there was no wheelchair access to the middle school flagpole,
which was the site of numerous school functions.
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- OCR noted that the stadium was built in 1973 and thus constituted an “existing
facility” under both Title II and Section 504. This allowed the school district the
option of relocating programs in lieu of making the facility accessible. In this
instance, however, the football games at issue could not practicably be relocated
(nor could school functions be relocated away from the flagpole area).
- OCR concluded that the stadium evidenced significant compliance issues. Paths of
travel to and within the stadium were not accessible, and the parking lot had been
repaved in 2002 without being made accessible. Moreover, OCR believed there
had been substantial upgrades to the seating in the stadium (here, every seat had
been replaced in 2002), without provisions being made for dispersed, accessible
seating or accessible restrooms. The flagpole area also lacked curb cuts allowing
wheelchair users to enter the area and participate in functions around the flagpole.
- The school district entered into a resolution with OCR, agreeing to bring its
stadium, parking, and flagpole area into compliance after conducting a survey and
developing a plan.
 Harvard University (2006 NDLR LEXIS 581; 34 NDLR 200):
- A student with mobility impairments (among other disabilities) complained about
insufficient access to Harvard’s dining hall services during semester breaks,
insufficient signage regarding accessible locations and services on campus,
transportation problems, and unequal access to classroom and library facilities. In
addition, the student complained about the University’s failure to communicate
effectively with disabled students about the location of campus events.
- The University addressed most of these issues effectively during the course of
OCR’s investigation; OCR noted, among other things, that the institution had taken
“extensive, pro-active steps” during the investigation to resolve the concerns
identified by the complainant. In particular, the University adopted procedures to
ensure that disabled students received timely and accurate information about
campus events and accessible elements at those venues (which was the only
compliance concern remaining by the time OCR concluded its investigation).
 University of Southern Indiana (2004 NDLR LEXIS 593; 29 NDLR 105):
- The complainant alleged that University Home, a campus venue serving as the
President’s residence and also being used for University functions, was
inaccessible to persons using wheelchairs because (i) the front entrance had four
steps; (ii) the one concrete ramp into the building was too steep; (iii) the routes to
the ramp were inaccessible, and (4) accessible parking was too far from the
residence.
- OCR found compliance issues under Title II and Section 504 with respect to use of
the first floor of University Home for institutional functions. The building, erected
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in 1982, was an “existing facility” under Title II because it was built before 1991
but “new construction” under Section 504 because it was built after 1977. The
first floor of this building did not meet the standards for existing facilities or new
construction, however; in addition to the issues raised by the complainant, the
interior of the first floor proved inaccessible.
- Under the “program access" provisions of Title II and Section 504, the University
was entitled to relocate programs away from the building in lieu of making
structural changes to the building. Accordingly, it entered into a Resolution with
OCR allowing the University either to move functions away from University
Home or to submit a plan for altering University Home consistent with the
applicable construction standards.
 Indiana University South Bend (2003 NDLR LEXIS 825; 26 NDLR 325):
- A student complained that the University was violating Title II and Section 504
with regard to the number and location of parking spaces, selected ramps, one
building entrance (to Riverside Hall), and the parking garage.
- OCR found that most of the areas challenged were, in fact, compliant with Title II
and Sections 504. One location – the ramp into Riverside Hall – proved to have an
unacceptable cross slope. The University therefore agreed either to relocate
programs and services away from Riverside Hall or to alter the front sidewalk and
entrance slope to bring that entrance into compliance.
 University of Illinois at Chicago (2003 NDLR LEXIS 562; 26 NDLR 48):
- Students challenged the University’s compliance with Title II and Section 504 with
regard to the accessible parking available at the University (which was allegedly
too far from buildings and otherwise non-compliant). The students also challenged
the manner in which metered street parking was handled near the University.
- OCR’s investigation resulted in a letter finding no violations on the part of the
University. OCR noted that UIC’s parking facility was built before 1991;
nonetheless, the University had voluntarily complied with these heightened
standards when constructing the garage, and its parking facilities were therefore
fully compliant. Despite this finding, the University agreed to post signs waiving
parking meter payments for disabled students at selected locations.
Arizona State University (2002):
- Complainants asserted that the University’s emergency evacuation procedures
discriminated against students with mobility issues by allegedly (i) excluding them
from mandatory fire drills, and (ii) failing to incorporate into the institution’s
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emergency plans what the complainants believed to be effective evacuation
procedures for students with mobility impairments.
- In this Letter, OCR first clarified that the ADA does not specifically require
adoption of special emergency procedures applicable to disabled students, nor do
ADAAG or other standards address this issue.
- OCR then addressed the nub of the dispute. This proved to be that complainants
wanted the University’s emergency policy to require that student residence
assistants physically carry disabled students out of buildings during emergencies.
OCR found this to be a “personal service” that was not required under the ADA or
Section 504 (and, further, noted that this practice raised safety concerns and that
carrying was perhaps best performed by trained emergency personnel).
- OCR also found that the University’s practice of notifying wheelchair users before
otherwise mandatory fire drills in the dorms -- and allowing those students the
option of not exiting the building during drills -- did not deny disabled students
equal access under the ADA or Section 504.
Please see Attachments A and B for further information (including citations) regarding the
statutes, regulations, lawsuits, and agency actions that are discussed above.
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