MAR 20 1996


The Honorable Sam Farr
Member, U.S. House of Representatives
701 Ocean Street
Santa Cruz, California 95060

Dear Congressman Farr:

        I am responding to your letter on behalf of your
constituent, XX                      , who is concerned about
provisions for persons with disabilities in the San Benito Joint
Union High School. Specifically, XX             would like to know
whether the High School is subject to the Americans with
Disabilities Act (ADA) and whether the main auditorium, which
hosts events open to the general pubic, is required to be
accessible to persons using wheelchairs.

        Title II of the ADA prohibits discrimination on the basis of
disability in State and local government services, including
public schools. Buildings constructed by or for State or local
governments since the effective date of the ADA, January 26,
1992, are required to be fully accessible to and usable by
individuals with disabilities, including individuals who use
wheelchairs. In addition, sections 35.149 and 35.150 of the
Department's title II regulation (enclosed) require accessibility
to programs, services, and activities in facilities that were
existing on the effective date of the statute. The principal
focus of the program accessibility standard is access to
programs, services, and activities, as opposed to access to
physical structures. Therefore, not every area of an existing
school facility would have to be made accessible, as long as
there is access to a school's programs, services, or activities.

        For existing facilities, every building does not necessarily
have to be made accessible if all of the programs located inside
that building can be made accessible by alternative means.
Section 35.150(b)(1) of the title II regulation does not require
that a school district eliminate structural barriers if it
provides access to its programs through alternative methods such
as redesign of equipment, reassignment of services to accessible
buildings, assignment of aides to beneficiaries, delivery of

cc:     Records, Chrono, Wodatch, McDowney, Milton, FOIA
        n:\udd\milton\congress\existfac.far\sc. young-parran
01-04175

                                -2-

services at alternate accessible sites, alteration of existing
facilities and construction of new facilities, or any other
methods that result in making the services, programs, or
activities readily accessible to and usable by individuals with
disabilities.

        If structural alterations are necessary to provide program
accessibility, such alterations must be undertaken unless the
public entity can demonstrate that the alterations would cause a
fundamental change to its program or that the cost of the
alterations would result in undue financial and administrative
burdens. 28 C.F.R. S 35.150(a)(3). Where an action would result
in such a change or such burdens, the public entity must take any
other action that would not result in such change or such burdens
but would nevertheless ensure that individuals with disabilities
receive the benefits or services provided by the entity.

        Thus, in situations where a school has an existing
inaccessible auditorium in which public events are held, in order
to meet its program accessibility obligations, the school
district may choose to move the event from the inaccessible
auditorium to an accessible location or to make the auditorium
accessible to persons with disabilities. If making the
auditorium accessible would result in a fundamental change in the
events or would constitute an undue financial or administrative
burden, then the school district would be required to move the
events to an accessible location.

        In the event that the San Benito Joint Union High School is
in violation of the ADA, XX             has several enforcement
options. First, he may file a complaint with the U.S. Department
of Education, which is the agency most likely to have
jurisdiction over his complaint by writing to: Office for Civil
Rights, Department of Education, 330 C. Street, N.W., Suite 5000,
Washington, D.C. 20202. The complaint must be in writing and
must include the complainant's name, address, and signature, and
a description of the public entity's alleged discriminatory
action. As an alternative to investigation by a Federal agency,
XX           may file a lawsuit in the appropriate Federal
district court. He would not need any approval letter from the
Department of Justice before proceeding. Attorneys' fees are
available under title II to a prevailing party in a private
lawsuit. XX            also may seek to resolve his complaint
through alternative dispute resolution. The enclosed brochure
describes such processes.
01-04176

                                -3-

        I hope this information is helpful to you in responding to
your constituent.

                                Sincerely,

                             Deval L. Patrick
                        Assistant Attorney General
                          Civil Rights Division
Enclosures
01-04177

INTAKE MEMO
Salinas
01/29/95
JU

XX
XX
XX

        XX            want to know whether San Benito Joint Union High
School is subject to the Americans' With Disability Act (ADA).
If so, then XX            opines that the High School is violating
the Act because the main auditorium, which hosts events open to
the general public, is not wheel chair accessible.

        Can Congressman Farr please find out whether or not the High
School is subject to ADA? If so, can Congressman Farr describe
the steps which XX            should take to make a complaint with
the appropriate authorities?
01-04178