Re Elizabeth Studer Civil Rights Complaint against Leander Indep by dtj80147

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									                                                          Central Office - Legal Services Unit
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                                                                          Austin, Texas 78757
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                                                                        www.advocacyinc.org

December 9,2009
Via CMRRR 7004251014296235

Office for Civil Rights/Dallas
U.S. Department of Education
1999 Bryan Street
Suite 1620
Dallas, Texas 75201

       Re:    Elizabeth Studer Civil Rights Complaint against Leander Indep+endent
              School District

Dear Sir or Madam:

Advocacy incorporated represents Elizabeth Studer, by and through her parents Malissa
and Jeffrey Studer. This letter serves as a formal complaint on behalf of Elizabeth Studer
and all other Elementary Students with mobility impairments in Leander Independent
School District (LISD). Elizabeth is a student in the 2nd grade at Blockhouse Creek
Elementary School in the LISD. Elizabeth has been discriminated against on the basis of
her disability, because the playground at Block House Creek Elementary is not physically
accessible to her. All other children with mobility impairments in the LISD have also
been subject to discrimination, because all of the Elementary School playgrounds in
LISD are not physically accessible.

The LISD and all of its Elementary Schools, including Blockhouse Creek Elementary, are
recipients of federal financial assistance from the U.S. Department of Education and thus
are subject to the requirements of Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 754 and its implementing regulations found at 34 C.F.R. Part 104, and the
Americans with Disabilities Act, 42. U.S.c. § 12132 and its implementing regulations
found at 28 C.F.R. Part 35. As a student receiving services from the LISD, Elizabeth
Studer is a qualified individual protected by the nondiscrimination provisions of Section
504 of the Rehabilitation Act. 34 CFR 104.3(1). Accordingly, OCR has jurisdiction to
investigate and process the complaints of discrimination on the basis of disability
contained herein.

                             FACTUAL BACKGROUND

Elizabeth Studer is an S-ycar-old 2nd Grade student who attends Block House Creek
Elementary, which is located at 401 Creek Run Dr. Leander, Texas 78641in the LISD.
She has a medical diagnosis of cerebral palsy and receives Special Education services
from the LISD as a student with an orthopedic impairment. Elizabeth requires a walker
to ambulate and is unable to access the playground at Block House Creek because:
LISD Letter
December 9,2009
Page 2

              •    a vast majority of the playground equipment is surrounded by soft, loose
                   wood mulch, which is extremely difficult to navigate across using a
                   walker;
              •    it does not contain a significant number of activities that she can access
                   independently, or with minimal assistance; and
              •    surrounding a section of the playground equipment, there is a wooden
                   barrier several inches high, which she cannot independently cross with her
                   walker.'

Most, if not all, of the other Elementary School playgrounds in the LISD have these same
barriers to physical access. That is, the playground equipment is surrounded by a soft,
loose ground cover, the playground does not contain a significant number of activities
accessible to students with mobility impairments and sections of equipment are
surrounded by a physical barrier that is not independently navigable by a student with a
mobility impairment. As a result, the LISD has discriminated against Elizabeth Studer,
and all other Elementary School students with mobility impairments, by having facilities
that are not accessible to persons with disabilities.

                                      LEGAL STANDARDS

Standards for Accessible Facilities

Discrimination on the basis of inaccessible facilities is prohibited under the regulations to
both the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation
Act (Section 504). 28 C.F.R. § 35.149; 34 C.F.R. § 104.21.2 The Section 504 and ADA
regulations provide two standards for providing accessibility, dependent upon when the
facility was constructed or altered. Under Section 504, buildings constructed prior to
June 3,1977, the effective date of the regulation, are regarded as "existing facilities" and
must comply with 34 C.F.R. § 104.22. This section requires that a recipient's programs
or activities, when viewed in their entirety, be accessible to persons with disabilities.
Facilities constructed after June 3, 1977, and parts of existing facilities altered after that
date, are deemed "new construction" under Section 504 and must comply with 34 C.F.R.
§ 104.23. Under this section of the regulation, buildings constructed or altered in a
manner affecting accessibility during the period of June 3, 1977 through January 17,
1991, are deemed to be in compliance if they met the American National Standards
Institute's accessibility standards (ANSI) A1l7.l-1961 [R1980] or substantially
equivalent standards. All new construction, or alterations of existing facilities made after
January 18, 1991, must be in compliance with the Uniform Federal Accessibility
Standards (UFAS) or substantially equivalent standards.

The ADA implementing regulations also have two standards, one for existing facilities
and one for new construction or alterations. With respect to existing facilities, the

        I Elizabeth's parents, Lissa and Jeff Studer, have repeatedly requested that the LISD make the
playground at Block House Creek accessible, but the LISD has refused to do so.
        2 The term "facility" is defined for purposes of the regulations in 34 CFR I04.3(i) as
encompassing buildings and "structures, equipment, roads, parking lots, or other real or personal property
or interest in such property."
LISD Letter
December 9, 2009
Page 3

regulation implementing Title II of the ADA, at 28 C.F.R. § 35.150, requires that public
entities, such as school districts, 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. An existing facility is defined as any facility the
construction or alteration of which was commenced before the effective date of the
regulation implementing Title II, January 26, 1992. For existing facilities, each facility
need not be readily accessible. Instead, each program or activity is to be operated so that
the program or activity, when viewed in its entirety, is readily accessible and usable.
Under the regulation implementing Title II of the ADA at 28 C.F.R., Section 35.151, as
of January 26, 1992, new construction or alteration of existing facilities must be in
conformance with the UFAS or with the Americans with Disabilities Act Accessibility
Guidelines for Buildings and Facilities (ADAAG), or equivalent standards. Public
entities, such as school districts, have a choice of which standards to follow. Depending
upon the date of construction, some facilities may be considered existing facilities for
purposes of the ADA but may also constitute new construction under Section 504, e.g.,
buildings constructed after June 3, 1977, but before January 26, 1992. In these cases,
public entities/recipients must meet the standards for existing construction under Title II
and also standards for new construction under Section 504.

Playground Accessibility

A "playground" meets the definition of "facility" under the Section 504 and ADA
regulations, 34 C.F.R. § 104.3(i) and 28 C.F.R. § 35.104. A playground facility is
comprised of both the structure or equipment installed to provide play activities, and the
surface surrounding such structure or equipment. Hinds County (MS) Sch. Dist., 49
IDELR 111 (OCR 2007); West Contra Costa (CA) Unified Sch. Dist., 34 IDELR 128
(OCR 2000).      Currently, there are no Federal design standards specifically for
playgrounds and play equipment. Nevertheless, playground facilities must still be
designed and operated to meet other Title II and Section 504 requirements, including
program accessibility and standards governing surface and access routes. Id.

While playground equipment need not comply with any specific design standard, the
general nondiscrimination provision of both Title II of the ADA and Section 504 do
apply, which provide for equal opportunity and program accessibility. 34 C.F.R. §§
104.4, 104.21-.22, 104.37(a); 28 C.F.R. § 35.130. Specifically, a school district must
make the programs or activities provided on a particular playground, when viewed in its
entirety, readily accessible to and usable by persons with disabilities. This means a
school district must provide an accessible route to a playground, a reasonable number of
accessible pieces of play equipment, and an accessible surface beneath the accessible
play equipment. Hinds County (MS) Sch. Dist., 49 IDELR 111 (OCR 2007); Shiloh (IL)
Village School District 85, 37 IDELR 188 (OCR 2002).

In addition to the requirements contained at 34 C.F.R. § 104.23 and 28 C.F.R. § 35.151, a
school district is generally obligated under the Section 504 and Title II regulations to
conduct each of its programs and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities. 34 C.F.R. § 104.4(b)(2) and 28 C.F.R.
§ 35.130(d). The ADA regulation at 28 CFR 35.130(b)(l)(iii) contains a general
LlSD Letter
December 9, 2009
Page 4

provision requiring districts to provide people with disabilities equal or equally effective
services. In addition, 28 CFR 35. 130(b)(I)(ii) states that public entities may not afford a
qualified individual with a disability an opportunity to participate in or benefit from an
aide, benefit or service that is not equal to that afforded others. Taken together, these
sections require a district to provide to students with disabilities services and facilities
comparable to the services and facilities provided to nondisabled students. Charlotte-
Mecklenburg (NC) Schs., 5llDELR 196 (OCR 2008).

Thus, to meet its obligation to provide students with disabilities equal opportunity and
access to programs and activities at a playground facility, a school district must:

         (1) have an accessible route leading to the playground;
         (2) have a reasonable number of accessible pieces of play equipment; and
         (3) have an accessible surface beneath accessible equipment that is firm, stable,
             and slip resistant.

Hinds County (MS) Sch. Dist., 49 lDELR III (OCR 2007); Belgrade (MT) Sch. Dist.
No. 44, 48lDELR 79 (OCR 2007); Shiloh (IL) Village School District 85, 37lDELR 188
(OCR 2002).

                                       ANALYSIS

The LISD is required to provide accessible facilities, including an accessible playground,
at all of its schools. 28 C.F.R. § 35.149; 34 C.F.R. § 104.21; 34 C.F.R. § 104.3(i); and 28
C.F.R. § 35.104. Block House Creek Elementary School, and the playground at the
school, were constructed after January 26, 1992. Thus, the school and the playground are
considered "new construction" under both the ADA and Section 504 and must both be
readily accessible and usable by persons with disabilities. 34 C.F.R. § 104.23; 28 C.F.R.,
Section 35.151. Moreover, LISD must ensure that students with disabilities, like
Elizabeth Studer, are afforded opportunities similar to their nondisabled peers and have
access to all the programs offered at school. 34 C.F.R. §§ 104.4, 104.21-.22, 104.37(a);
28 C.F.R. § 35.130.

Specifically, at Block House Creek Elementary, the LISD must provide an accessible
route to the playground, a reasonable number of accessible pieces of play equipment, and
an accessible surface beneath the accessible play equipment. Hinds County (MS) Sch.
Dist., 49 lDELR 111 (OCR 2007); Shiloh (IL) Village School District 85, 37 lDELR 188
(OCR 2002). At Block House Creek, there is an accessible route from the school
building that Elizabeth can use to go to one set of playground equipment. However,
other playground equipment at Block House Creek can only be accessed after traveling
across a grass covered field. Still other equipment at Block House is surrounded by a
wooden barrier several inches high, which Elizabeth cannot independently cross. In
addition, a vast majority of the playground equipment at Block House Creek is
surrounded by either soft, loose wood mulch or pea gravel, which is very difficult for
Elizabeth to traverse. Finally, the playground at Block House Creek does not have a
LISD Letter
December 9, 2009
Page5

single piece of accessible playground equipment for Elizabeth to use.' Thus, the
playground at Block House Creek does not meet the facility accessibility standards under
either the ADA or Section 504. By failing to provide Elizabeth with accessible facilities,
the LISD has discriminated against her on the basis of her disability, in violation of
Section 504 and the ADA.

The LISD must also provide Elizabeth with services that are equal to, or as equally
effective as, those provided to her nondisabled peers. 28 CFR 35.130(b)(l)(iii).
Furthermore, the LISD must afford Elizabeth an equal opportunity to benefit from the
services offered to students at Block House Creek. 28 CFR 35.130(b)(l)(ii). This means
that the LISD must provide Elizabeth with services and facilities that are comparable to
those provided to her nondisabled peers at Block House Creek. Charlotte-Mecklenburg
(NC) Schs., 51 IDELR 196 (OCR 2008). By providing Elizabeth with no accessible
playground equipment and by failing to make the playground area at Block House Creek
accessible, the LISD has failed to provide her with comparable services, in violation of
the ADA.

The LISD has twenty-two other Elementary Schools, which must all also have accessible
playground facilities. 28 C.F.R. § 35.149; 34 C.F.R. § 104.21; 34 C.F.R. § 104.3(i) and
28 C.F.R. § 35.104. A majority of these facilities were built after January 26,1992, and
thus, are considered "new Construction under Section 504 and the ADA, requiring them
to be readily accessible to persons with disabilities. 34 C.F.R. § 104.23; 28 C.F.R.,
Section 35.151. Even the playgrounds in the LISD that are "existing facilities" under
Section 504 and the ADA must, when viewed in their entirety, be accessible to persons
with disabilities. 34 C.F.R. § 104.22; 28 C.F.R. § 35.150. At a minimum, the playground
facilities at the Elementary Schools in the LISD, even if they are considered "existing
facilities," must:

         (l) have an accessible route leading to the playground;
         (2) have a reasonable number of accessible pieces of play equipment; and
         (3) have an accessible surface beneath accessible equipment that is firm, stable,
             and slip resistant.

Belgrade (MT) Sch. Dist. No. 44, 48 IDELR 79 (OCR 2007). Like the playground at
Block House Creek, the playground facilities at the other LISD Elementary schools have
barriers to accessibility. Specifically, these schools have playground equipment that is
surrounded by a soft, loose ground cover, have playground equipment that is not on an
accessible route, have playground facilities that do not contain a significant number of
activities accessible to students with mobility impairments and have sections of
equipment that are surrounded by a physical barrier that is not independently navigable
by a student with a mobility impairment. Thus, the LISD is discriminating against all
elementary students in the district with mobility impairments by failing to provide
accessible playground facilities.


         3 The LISD cannot meet its obligation to provide an accessible playground by carrying and lifting
Elizabeth to, or onto, playground equipment, because this compromises Elizabeth's privacy and dignity.
OCR StaffMemorandum, 17 IDELR 613 (OCR 1991).
LISD Letter
December9, 2009
Page 6

                                 REQUESTED RELIEF

Advocacy, Inc. requests that OCR open an investigation related to the claims contained
herein, conduct an on-site investigation of all of the playground facilities in the LISD and
require the LISD to make all of its Elementary School playground facilities physically
accessible to students with disabilities, in accordance with the standards set forth in this
complaint.

If you have any questions about this complaint, I may be reached directly at (512)407-
2752.




Steven P. Elliot
Senior Attorney

SPE/mc

Cc:     Malissa & Jeffrey Studer
        Susan Graham, Attorney, Walsh, Anderson, Brown, Alderidge, and Gallegos,
        P.C.
        Bret Champion, Superintendent, Leander Independent School District

								
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