For most people, understanding the collection of rights which apply to a
given situation is more important than knowledge of each law viewed
separately. It is for attorneys to delve into law books to apply statutes,
regulations and judicial interpretations to the facts of a particular case.
This chapter will seek to provide the broader understanding for everyone in
four significant areas -- employment, housing, public accommodations and
education. At the same time, it gives specific guidance for lawyers. The
length and nature of the discussion in each area reflects the varying degrees
of attention each area has received in the legislatures and in the courts.
In deciding whether a person has been discriminated against due to an actual
or perceived disability, a three part inquiry generally is used: (1) does the
person have (or is the person perceived to have) a disability?; (2) is the
person "qualified" for the job or activity in question?; and (3) was the
person treated discriminatorily based on his or her disability? The third
part of this test is particularly important to bear in mind, since
discrimination often is subtle and, indeed, there may be legitimate reasons
for preferring one person over another or for taking adverse action against
someone. Retaliation against people who complain about discrimination also is
unlawful, but, again, whether conduct is retaliatory will depend on the
Roughly two-thirds of "working-age" (ages 16 and older) people with
disabilities -- tens of millions of Americans -- are unemployed. This
staggering figure represents the highest rate of joblessness among any
sizable minority in this country. Yet a Harris poll reported that some 67% of
these unemployed Americans with disabilities would like to have a job. This
stands to reason, since work provides not only a livelihood, but also a means
for significant individual achievement, important contributions to society
and social interaction. For employers facing a dwindling number of competent
people to hire, qualified people with disabilities may prove a valuable
The law requires that many of these people be given an equal opportunity to
work and, in some cases, that affirmative action be taken to secure such
Employers are required to assure qualified people with disabilities equal
opportunities in all phases of employment -- including recruitment, hiring,
training opportunities, rates of pay, benefits, promotions, job assignments,
layoff, termination -- even employer-sponsored social and recreational
activities. See 28 C.F.R. Sec. 41.52.
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Section 504 of the Federal Rehabilitation Act is the primary Federal law in
this area, although it is limited to recipients of Federal funds, including
Federal agencies and contractors. 29 U.S.C. Sec. 794; 28 C.F.R. Secs. 41.51,
41.52. Protection similar to that available under Federal law also is provided
by the New York State and New York City Human Rights Laws, which cover
employers of four or more people, unions and employment agencies as well.
State Executive Law Sec. 296; City Administrative Code Secs. 8-107, 8-108. In
some situations, the language of the State and City laws recognizes rights
somewhat broader than those found in Federal law. The State Civil Rights Law
(Sec. 47-a) also prohibits employment discrimination by any employer, but
covers only those "otherwise qualified" people with disabilities who are
accompanied by a guide dog, hearing dog or service dog. However, the State and
City laws do not require appointment of a coordinator nor establishment of
internal grievance procedures. The duplication of coverage provides a variety
of remedies against discrimination.
Qualified Person with a Disability
A "qualified handicapped individual" generally is defined as "an individual
with a handicap who is capable of performing the essential functions of the
job or jobs for which he or she is being considered with reasonable
accommodations to his or her handicap." 29 C.F.R. Sec. 32.3 (emphasis added);
see also 28 C.F.R. Sec. 41.32; School Board of Nassau County v. Arline, 480
U.S. 273 (1987); Brennan v. Stewart, 834 F.2d 1248,1260-62 (5th Cir. 1988).
Under both Federal and City law, "respondents [such as employers] have the
burden of demonstrating that disabled persons are not 'otherwise qualified'
for an accommodation or benefit, and that reasonable accommodation is not
available." Daniels v. Queens Lighthouse, New York City Commission on Human
Rights Complaint No. GA-001890502899-DN, Decision and Order, pages 1-2 (May
31, 1990); see Prewitt v. United States Postal Service, 662 F.2d 292, 308
(5th Cir. 1981). The Americans with Disabilities Act uses the phrase "with or
without reasonable accommodation" (Sec. 101(8)), but this change is only to
highlight that, in many instances, people with disabilities need no
As noted before, protections are provided under New York State and New York
City Human Rights Laws, New York State Civil Rights Law, as well as under
People with disabilities also have abilities. Sometimes their disabilities
make it difficult for them to perform tasks unless changes are made in where
or how the tasks are performed. In many jobs, some tasks are not essential,
but could be done by others or not done at all. Employers are required to
make reasonable accommodations for people with disabilities who, when such
accommodations are made, could perform the essential tasks of the job.
Accommodation must be made to the particular known disabilities of each
qualified employee and job applicant unless the employer proves that
providing such accommodation would create an undue hardship for the employer,
that is, that it would be unreasonable. This is the concept of reasonable
accommodation. See 28 C.F.R. 41.53. What accommodations are reasonable
generally depends on the circumstances of each situation, but can include,
among other things:
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making facilities physically accessible to, and usable by,
people with disabilities (ramps, elevators, signage);
modifying work schedules;
purchasing or modifying equipment or devices (addition of
hand or foot controls, varying the height of switches;
installation of Telecommunication Devices for the Deaf
("TDDs"), large print computer display processors);
providing readers, interpreters or other support services.
For example, a State social service agency was required to provide readers,
electronic devices or other suitable accommodations to income maintenance
workers who were blind. These workers required assistance to read various
materials and to complete standardized public assistance forms. The modest
cost of providing halftime readers, and the ease of adopting that
accommodation without any disruption of the agency's services, did not impose
undue hardship on the agency. Note that the court looked to the agency as a
whole, rather than to the unit, or even the division, in which the employees
worked. Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), aff'd, 732
F.2d 147 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985).
Often a person with a disability can be helpful in suggesting appropriate
accommodations; government agencies such as the New York State Office of
Vocational and Employment Services for Individuals with Disabilities
("VESID)", formerly known as the Office of Vocational Rehabilitation, ("OVR")
or the Commission for the Blind and Visually Handicapped ("CBVH"), the
Independent Living Centers located in each county, or private groups such as
the Lighthouse, the MS Society, United Cerebral Palsy, or the National Center
for Learning Disabilities can be helpful in developing reasonable
accommodations. While an employer may be required to purchase adaptive
equipment, it sometimes may be appropriate for a person with a disability to
seek such equipment from VESID or CBVH. Equipment obtained from these sources
becomes the property of the individual with the disability; if purchased by
the employer, it would belong to that employer. VESID or CBVH will require the
employer to demonstrate why it is not reasonable to expect the employer to
purchase the equipment. Unfortunately, because of budgetary constraints, State
purchase of adaptive equipment for individuals with disabilities is quite
As mentioned earlier, a person who has a disability and uses a guide, hearing
or service dog may keep such a dog with him or her; people who are blind also
may keep their canes with them. New York State Civil Rights Law (Article 4-B).
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New York State Civil Service Law Sec. 55 also prohibits discrimination on the
basis of disability. For example, a person who is blind may be furnished an
amanuensis, as well as additional time to take an examination; a person with a
learning disability might only require additional time; it might be best to
provide examinations in alternative forms, such as Braille, large print and on
tape, one or more of which may be helpful to people with various disabilities.
New York State Education Law Sec. 3004 also contains provisions against
employment discrimination on the basis of disability.
In the case of an alcohol or drug abuser who is in the process of recovery,
reasonable accommodation may include time off from the job to enable the
employee to attend a detoxification program. However, if an employee has been
given an opportunity for rehabilitation but has resumed his or her substance
abuse or has quit the rehabilitation program in which he or she was enrolled,
an employer will usually be justified in discharging the employee. See LeMere
v. Burnley, 683 F. Supp. 275 (D.D.C. 1988).
Although smokers might be considered to be substance abusers protected by Sec.
504, as well as by the City and State Human Rights Laws, the type of
reasonable accommodation which may be afforded is limited by New York State's
Clean Indoor Air Act, Public Health Law Art. 13-E, which has become effective
during 1990. See also New York City's Clean Indoor Air Act, Administrative
Code Secs. 17-501 -- 17-514. It is not reasonable to accommodate one
individual with a disability by creating a serious unavoidable risk of causing
disability in co-workers. See School Board of Nassau County v. Arline, 480
U.S. 273, 287, n. 16 (1987). Inhalation of second-hand smoke can result in a
disability qualifying for workers' compensations benefits. Johannesen v. New
York City Department of Housing Preservation and Development, 546 N.Y.S.2d 40
(2d Dep't 1989); Horme v. Barclay Home Products, 149 A.D.2d 878, 540 N.Y.S.2d
567 (3d Dep't 1989); see also Parodi v. Merit Systems Protection Board, 702
F.2d 743 (9th Cir. 1982); Vickers v. Veterans Administration, 549 F. Supp. 85
(W.D. Wash. 1982).
Absenteeism caused by disability need be accommodated only to a point.
Unfortunately, there is no clear standard identifying that point. This
requires case-by-case analysis. It should be remembered that it is unlawful to
discriminate against someone who, with reasonable accommodations, can do a
job. If an employer provides for a specified number of sick leave days, it may
be presumed that use of those days is reasonable. However, abuses such as
failure to give notice or provide documentation (when such things are required
of all similarly situated employees) might be viewed as unreasonable. Taking
more than the allotted number of sick days should not be presumed to be
unreasonable, depending on the circumstances. When a specific amount of sick
leave is not established by employer policies (or union contracts), that
flexibility may not be used in a discriminatory fashion against people with
disabilities; reasonable accommodation requirements should be considered in
such cases. When absenteeism reaches a level which shows an inability to do
the job, removing the person from the job might be neither discriminatory nor
unlawful; the person may no longer be protected as "otherwise qualified".
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An accommodation is not reasonable where the employer can prove that making it
would impose an "undue hardship" on the employer's business or operations. See
Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); but see AFGE, Local 51 v.
Brock, 677 F. Supp. 636 (N.D. Cal. 1987) (requiring extensive accommodations).
Among the factors considered in determining the extent of an employer's
obligation to make such an accommodation are (1) the nature and size of an
employer's business, (2) the number of employees in a company, (3) the
composition of the company's workforce, and (4) the nature and cost of the
particular needed accommodation. See 28 C.F.R. Secs. 41.53, 42.513(c).
Reasonable accommodation generally does not require an employer to create or
find an alternative position for an employee who cannot perform his or her
job. See Arline, 480 U.S. 273. However, an employer may not refuse to transfer
an employee with a disability to another position for which he or she would be
qualified if existing personnel policies and practices provide for such
transfers or reassignments for employees generally. Id.
Defining Disability in Employment
Employment is the area in which antidiscrimination law has developed most
fully; disability discrimination is no exception to that rule. Thus the courts
have focused on particular issues in defining disability with respect to
employment which go beyond the definitions discussed above.
Not every physical characteristic is an impairment under the law.
"Characteristics such as average height or strength that render an individual
incapable of performing particular jobs are not covered by the statute because
they are not impairments," Jasany v. U.S. Postal Service, 755 F.2d 1244, 1249
(6th Cir. 1985) (emphasis in original). A person too slow to play
professional football or someone whose short fingers preclude a career as a
concert pianist might not be considered as having a disability, E.E. Black,
Ltd. v. Marshall, 497 F. Supp. 1088 (D. Hawaii 1980); Jasany; see also
Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986). Mere overweight (as opposed
to obesity) is not a disability. Underwood v. TWA, 710 F. Supp. 78, 83-84
Some of these cases have gone further, however, finding that a physical
condition which prevents a person from performing an essential task of a
particular job but which does not impair the person's ability to perform most
other jobs (e.g., eyes which cross due to the concentration needed to
proofread) should not be defined as a disability. Such holdings may be
questionable under Federal law and are inconsistent with New York State and
New York City Human Rights Laws. See State Division of Human Rights
(McDermott) v. Xerox Corp., 65 N.Y.2d 213, 480 N.E.2d 695, 491 N.Y.S.2d 106
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Present Impairment Versus Future Risk
The risk of a future impairment is not enough to disqualify a qualified person
with a disability. While some cases seem to permit an employer's consideration
of future disability, they require case-by-case factual finding, based on
substantial evidence of the particular individual's work and medical
histories, that no reasonable accommodation could be made which would permit
the per son to perform the essential functions of the job in question without
the substantial risk of imminent serious injury. Mantolete v. Bolger, 767 F.2d
1416, 1422-23 (9th Cir. 1985). An example often used is that of "a particular
person . . . given a particular job . . . [who] would have a 90% chance of
suffering a heart attack within one month," E.E. Black Ltd., 497 F. Supp. at
1104; see Mantolete, 767 F.2d at 1422-23.
The New York State Court of Appeals has decided that it is unlawful to
discriminate against a person because his or her extreme obesity makes the
person more prone than most to other serious illness, stating, among other
things, that "employment may not be denied because of any actual or perceived
undesirable effect the person's employment may have on disability or life
insurance programs." Xerox, 65 N.Y.2d at 218, 480 N.E.2d at 697, 491 N.Y.S.2d
at 108. This holding precludes employers in New York from basing employment
decisions on an assessment of the future costs of employing an individual with
a medical condition which does not currently significantly interfere with the
ability to perform the job. Even where New York State Civil Service Law (Sec.
50.4(d)) specifically permits State and City Civil Service Departments to
consider whether an applicant's physical condition could reasonably be
expected to render him or her unfit to perform the duties of the job (see
Rules and Regulations of the New York City Department of Personnel, Sec. Ill,
Para. 4.3.2(d), effectuating the State Civil Service Law provision), the Court
of Appeals has required the employer to meet a substantial burden of proof. In
the case of a police officer applicant who could do the job at the time of the
trial (notwithstanding a back condition which usually leads to far more
disabling complications), the Court of Appeals concluded that
"[e]mployment may not be denied based on speculation and
mere possibilities, especially when such determination is
premised solely on the fact of an applicant's inclusion in a
class of persons with a particular disability rather than
upon an individualized assessment of the specific
State Division of Human Rights (Granelle) v. City of New York, 70 N.Y.2d 100,
107, 510 N.E.2d 799, 802, 517 N.Y.S.2d 715, 718 (1987). See Antonsen v. Ward,
N.Y.L.J., July 6,1989, at 24, col. 1 (Sup. Ct. N.Y. Cty.) ("general
statistical evidence on the probability of the recurrence of . . . [a
gastrointestinal disorder] rather than an individual assessment of . . .
[police officer's current] physical condition" inadequate; reinstatement with
back pay ordered); City of New York v. State Division of Human Rights
(Teele), 154 A.D.2d 56 (1st Dep't 1990) (demonstrated current physical
ability and conflicting medical opinions concerning likelihood of
individual's future propensity for knee problems warranted finding of
discrimination and order for reinstatement to police force with back pay).
See also Nemhauser v. NMU Pension and Welfare Plan, New York City Commission
on Human Rights Complaint No. EM00877-7/27/88, Recommended Decision and
Order, pages 26-27 and n. 8 (November 21,1989), adopted as modified, Decision
and Order (February 22, 1990) (There is "no exception in the [New York City
Administrative] Code [Human Rights Law] for permitting discrimination on the
basis of the possibility of future illness. Nor is there an analogous
interpretation to the contrary under the State Human Rights Law." Finding a
union pension fund and (with the Commission's modification) the examining
physician liable for discriminating against a computer operator job applicant
on the basis of a heart condition which did not preclude such work, the City
Commission distinguished the police cases since the Civil Service Law permits
such considerations there.)
Whether a medical condition constitutes a present impairment is a question of
fact which must be measured against the proper statutory standard. In Miller
v. Ravitch, 60 N.Y.2d 527, 458 N.E.2d 1235, 470 N.Y.S.2d 558 (1983), Miller,
a Transit Authority supervisor, was demoted to his former position of
railroad clerk due to an inability to climb stairs after several
hospitalizations for a heart condition. The Court of Appeals found that an
employee with a disability need not be able to perform the job in a perfect
manner, but only in a reasonable manner. "Unless it is shown that the
employee's physical condition precludes him from performing to that extent,
the disability is irrelevant to the job and can form no basis for denying him
the position." 60 N.Y.2d at 532, 458 N.E.2d at 1237, 470 N.Y.S.2d at 560.
It is interesting to note the Court's observation in Xerox that the fact that
obesity was possibly treatable did not exclude that condition from the
definition of disability.
Internal Section 504 Coordination
While Sec. 504 (unlike Sec. 503, discussed below) does not require
affirmative action, recipients of $25,000 or more in Federal funds with 50 or
more employees must designate someone to coordinate their compliance with
Sec. 504, establish an internal grievance procedure to address discrimination
complaints and take other continuing steps to advise employees of employer
obligations. 28 C.F.R. Sec. 42.505(d).
Section 503 of the Federal Rehabilitation Act requires employers with Federal
contracts of $2500 or more annually (for services, supplies, use of real
property, etc.) to take affirmative action to employ and promote qualified
people with disabilities at all levels. Affirmative action applies to all
aspects of employment. The employer also must continue advising employees of
the employer's duty to comply with the law. Employers of 50 or more and
contracts of $50,000 or more must have a written affirmative action plan and
designate responsible employees to carry it out. 41 C.F.R. Secs. 60-741.4
through .6. Of course, Federal contractors are also recipients of Federal
funds and so are covered under Sec. 504 as well. Federal agencies have
affirmative action obligations to their employees under Sec. 501. See also
Vietnam Era Veterans' Readjustment Assistance Act, Sec. 402, 38 U.S.C. Sec.
2011 et seq.
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Employment tests or criteria which are not related to the essential elements
of the job or which otherwise tend to screen out qualified people with
disabilities must not be used. 28 C.F.R. Sec. 41.54; 41 C.F.R. Sec.
60-741.6(c). While an employer may lawfully inquire whether an applicant can
perform specific tasks necessary in the position for which the individual has
applied, an employer may not ask whether an applicant has a disability or has
been treated for specific diseases. See 28 C.F.R. Sec. 41.55; Rulings by New
York State Division of Human Rights, F.E.P. Manual, vol. 8B, 455:3151, 3152
(1989) (BNA) (ruling on Executive Law Sec. 292.21). Notwithstanding this
general rule, Sec. 503 permits a Federal contractor to ask directly about
disabilities, for affirmative action purposes, although even then the inquiry
must be carefully phrased and the information kept confidential. 28 C.F.R.
Sec. 42.513; 41 C.F.R. Sec. 60-741.6(c). See also State Executive Law Sec.
296.1(d) (State and City Civil Service Departments may make such inquiries,
but only for purposes of ensuring equal employment opportunities). With
respect to Civil Service positions, see State Civil Service Law Sec. 50.4(d)
(State and City Civil Service Departments may consider whether an applicant's
physical condition could reasonably be expected to render him or her unfit to
perform the duties of the job); Rules and Regulations of the New York City
Department of Personnel, Sec. Ill, Para. 4.3.2(d) (effectuating the State
Civil Service Law provision); presumably, based on these provisions,
pertinent inquiries might be permissible, although, as discussed above, such
inquiries would have to be quite specifically directed to how the particular
individual's condition is likely to affect performance of the essential
duties of the job in question.
Similarly, any medical or physical examination, or laboratory or
psychological test required by an employer must be job-related. In other
words, the test (e.g., physical strength, agility, stamina) must be designed
to determine the applicant's current fitness for the job in question. Such
examinations and tests may be used only if they are required of all
applicants for the type of position in question. See 28 C.F.R. Sec. 42.513.
As discussed above, they may not be used to disqualify an applicant because
of suspected future risk to the person's health in performing a specific job.
Granelle, 70 N.Y.2d 100, 510 N.E.2d 799, 517 N.Y.S.2d 715, and Xerox, 65
N.Y.2d 213, 480 N.E.2d 695, 491 N.Y.S.2d 106.
The legality of screening employees or prospective employees for drug use
currently is one of the most contentious issues in the law, with testing
sometimes being permitted for certain highly sensitive public safety
positions. In such cases, however, the focus is less on disability
discrimination than on whether the test is a search so "unreasonable" under
the circumstances as to be unconstitutional or an invasion of privacy. See
Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402, 1416 (1989);
National Treasury Employees Union v. Van Raab, 109 S. Ct. 1384 (1989);
Delaware v. Prouse, 440 U.S. 648, 654 (1979); Matter of Seelig v. Koehler, 76
N.Y.2d 87 (1990) (upholding random drug testing of corrections officers);
Matter of Caruso v. Ward, 72 N.Y.2d 432, 437 (1988) (upholding random drug
testing in a police department organized crime 16 L unit); Matter of
Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57,
510 N.E.2d 325, 517 N.Y.S.2d 456 (1987) (school officials must have
reasonable suspicion before requiring teacher submission to urinalysis);
Matter of Barretto v. City of New York, N.Y.L.J., May 15,1990, at 21, col. 3
(2d Dep't May 7, 1990) (upholding discharge of Transit Authority police
detective for evading drug test after automobile accident).
The New York State Division of Human Rights presumes that virtually all
pre-employment testing violates the New York State Human Rights Law unless
the condition screened for is job-related. Rejection of applicants solely for
failing a drug or alcohol test is presumptively illegal, whether a person is
actually addicted or only perceived to be addicted; the person is protected
by the law, requiring an individualized assessment of whether the person in
question can reasonably perform the job in question. New York State Division
of Human Rights, August 1988. This approach has received judicial support in
Doe v. Roe, Inc., 143 Misc.2d 156, 539 N.Y.S.2d 876 (Sup. Ct. N.Y. Cty.
1989), aff'd, 553 N.Y.S.2d 365 (1st Dep't 1990). "[A]ll medical testing
whether in a pre- or post- employment context shall not be required by
employers of applicants/employees unless there is a bona fide occupational
qualification to warrant such an examination. This includes, inter alia,
testing for drug and alcohol abuse." New York State Division of Human Rights
Commissioner Douglas H. White, inter-office memorandum, Dec. 7,1989.
Employment tests (such as aptitude tests) must be adapted for people with
impaired sensory, manual or speaking skills. See 28 C.F.R. Sec. 41.54; State
Civil Service Law Sec. 55; State Education Law Sec. 3004.
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Unlike employment, until recently, housing discrimination had been left
largely to State and local agencies in the past two decades. While the Fair
Housing Act of 1968 prohibited some discrimination, people with disabilities
were not included in the law's protection and, even more significantly, the
Federal law contained no enforcement provisions. New York State and New York
City, in the meanwhile, not only prohibited housing discrimination against
people with disabilities, but also gave their respective human rights
agencies the power to enforce the laws. Since most matters have been resolved
by conciliation or in unpublished agency decisions, there have been
relatively few reported cases of housing discrimination on the basis of
disability. However, with the passage of the Fair Housing Amendments Act of
1988, administered by the United States Department of Housing and Urban
Development ("HUD"), the Federal government has taken a tremendously
important role in this area.
The Federal Fair Housing Amendments Act of 1988 (amending the Fair Housing
Act) attacks discrimination based on disability both by: (a) prohibiting
discriminatory housing practices currently and (b) requiring certain
construction standards for multifamily dwellings built for first occupancy
after March 13, 1991. As to the first approach, existing New York State and
New York City Human Rights Laws have recognized similar rights for years. As
to "(b)", however, although both State and City Building Codes have made
similar requirements (enforced by local Buildings Departments with methods
applicable to these Building Codes generally), they have not been enforceable
as human rights, as they now are under the Federal law. As discussed below,
the New York City Commission on Human Rights currently is considering
adopting a Recommended Decision and Order holding that architectural
alterations may be among reasonable accommodations which must be made by
those in control of housing. The other great advance in the Federal Fair
Housing Amendments Act is its tough new enforcement mechanism. Failure to
comply can invoke civil rights enforcement procedures which range from
administrative complaints to litigation in Federal courts prosecuted by the
United States Justice Department. This is not to say that Building Code
remedies should be ignored, since they can include a Buildings Department
order that a building not be used until the requirements of the Building Code
are met, even if that means removing and replacing noncompliant work. That
may have the same effect as a Federal court injunction.
Prohibiting Discriminatory Housing Practices
As a practical matter, due to the new Federal enforcement powers, many
complaints of housing discrimination will be made under the Federal law,
although they are likely to be referred for processing to State and City
human rights agencies. Since Federal, State and City laws in this field are
similar, the discussion below focuses primarily on the Federal law.
Nonetheless, variations in statutory and regulatory language make it wise to
invoke all of these laws so that the fullest possible protection is
The Federal Fair Housing Act now prohibits discrimination in the
sale or rental of housing accommodations; or
terms, conditions or privileges of sale or rental of a dwelling; or
provision of services or facilities in connection with such dwelling;
because of the actual or perceived disability of
the buyer or renter; or
a person residing in or intending to reside in the dwelling; or
any person associated with the buyer or renter.
Such discriminatory housing practices include refusal to
permit the person with a disability (at that individual's
expense) to make reasonable modifications of the premises
which would enable that person more fully to enjoy use of the
make reasonable changes in building rules which changes would
enhance the enjoyment of the premises by the person with a
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42 U.S.C. Sec. 3604(f).
New York City's Human Rights Law -- which covers both private and public
housing, including one-family homes in many cases -- prohibits discrimination
against a person with a disability who can enjoy the benefits of such housing,
including related facilities and services; a person or entity in control of
the housing, facilities or services may be required to make reasonable
accommodations to the needs of the person with a disability. Administrative
Code Secs. 8-107.3, 8-107.5, 8-108, 8-102.10, 8-102.11, 8-102.16(e); see New
York City Commission on Human Rights, Gertrude Kass and Bernard Kass v. United
Veterans Mutual Housing, No. 2 Corp., New York City Commission on Human
Rights, Complaint No. EM00936-08/14/87-DE, Recommended Decision and Order,
pages 5-6 (April 4,1990). The State Human Rights Law, while there currently is
some question as to whether it requires reasonable accommodation, provides
similar protection against discrimination. Executive Law Secs. 296.2-a,
296.5, 292.10, 292.1 1 .
New York State's Civil Rights Law (Sec. 47) declares that a person may not be
denied equal use and enjoyment of public facilities -- including all forms of
public and private housing -- solely because that person both has a disability
and is accompanied by a guide, hearing or service dog. See also New York State
Human Rights Law (Executive Law) Sec. 296.14.
Discrimination in sale or rental can begin when one starts to look for
housing. It may involve improper advertising, inquiries, "steering",
misrepresentations as to availability, "blockbusting" or denial of (or setting
different fees for) financing or brokerage services. Such acts are prohibited
not only under the Federal Fair Housing Amendments Act, but also under the
State and City Human Rights Law provisions cited above. Perhaps the fullest
discussion of such prohibitions appears in HUD's regulations at 24 C.F.R.
Secs. 100.50 -- 100.135 (1990).
Some publicly-assisted housing receives assistance based upon a commitment
that it will give preference to, or provide accommodations only for, people
with certain disabilities (such as mobility impairments or developmental
disabilities). Similar programs are directed at housing people who are
elderly. Some landlords voluntarily give a preference to people with mobility
impairments in the rental of accessible dwelling units. Federal law does not
require rental to people who are likely to pose a threat to the safety or
well-being of others. Thus, although the Fair Housing Amendments Act does not
clearly seem to authorize it, HUD's regulations under that law permit
inquiries, when made of all applicants, which are necessary to make legitimate
eligibility determinations. 24 C.F.R. Sec. 100.202 (1990). Neither State nor
City Human Rights Laws have such extensive exceptions to the general
prohibition against inquiries or advertising which would discriminate on the
basis of disability and neither are preempted by the Federal regulations.
Thus, inquiries as broad as those permitted by HUD may not be permissible in
- 19 -
Fear of Damage or Danger
Concern often is expressed about persons whose disabilities include violent,
destructive outbursts or who are highly contagious even in casual proximity.
The Federal Fair Housing Amendments Act contains a definition of the term
"handicap" akin to those which explicitly exclude "current, illegal use of or
addiction to a controlled substance" (42 U.S.C. Sec. 3602(h)). The law further
makes clear that it does not "require a dwelling to be made available to an
individual whose tenancy would constitute a direct threat to the health or
safety of other individuals or whose tenancy would result in substantial
physical damage to the property of others." 42 U.S.C. Sec. 3604(f)(9); 24
C.F.R. Sec. 100.202(d) (1990). However, HUD stresses that it will construe
this latter provision narrowly. 54 Fed. Reg. 3247 (1989), citing 53 Fed. Reg.
"Any claim that an individual's tenancy poses a direct threat
and substantial risk of harm must be established on the basis
of objective evidence, e.g., a history of overt acts or
current conduct. Generalized assumptions, subjective fears,
and speculation are insufficient to prove the requisite direct
threat .... [Also,] the normal wear and tear to a dwelling
unit that might be expected on the part of an individual who
uses a wheelchair, such as the nicking of doorframes or of
walls, would not constitute 'substantial' physical damage ....
In addition, the individual's tenancy would have to be shown
to cause substantial physical harm to significant pieces of
53 Fed. Reg. 45,002 (1988).
This area is most appropriately viewed not as a matter of disability
discrimination, but rather as the exclusion of "undesirable tenants" who
happen to have disabilities. Custodio v. Popolizio, 139 Misc.2d 391, 527
N.Y.S.2d 333, 334 (Sup. Ct. N.Y. Cty.), aff'd, 138 A.D.2d 270, 526 N.Y.S.2d
392 (1st Dep't 1987) (exclusion on basis of mental illness impermissible, but
exclusion may be legal if "conduct is such as will cause substantial
disturbance to the other tenants in the housing authority project."); New York
City Housing Authority Tenant Selection Committee v. State Human Rights Appeal
Board, 59 A.D.2d 742, 398 N.Y.S.2d 562, 564 (2d Dep't 1977) (setting forth
reasons -- akin to those in the Fair Housing Amendments Act -- why an
"undesirable tenant" might be excluded from public housing; " . . .
ineligibility was not predicated upon . . . mental disability. The record is
replete with incidents which portend that the applicant possessed a strong
propensity for becoming a disruptive and disorderly tenant").
Limitations of Service
Limiting or denying the use of privileges, services or facilities associated
with a dwelling because of disability is unlawful under the Federal Fair
Housing Amendments Act (see 24 C.F.R. Sec. 100.65(b)(4) and (5) (1990)), as
well as under the New York State and New York City Human Rights Laws
(Executive Law Secs. 296.2-a(b), 296.5(a)(2); Administrative Code Secs.
8-107.3(b), 8-1 07.5(a)(2)). For example, no greater security deposit may be
required because a person using a wheelchair might do more damage than others
to a dwelling unit. 54 Fed. Reg. 3239 (1989).
- 20 -
Reasonable Accommodation in Rules
The Federal Fair Housing Amendments Act not only requires landlords to permit
reasonable architectural alterations, but it also mandates that they make
reasonable accommodations in rules, policies, practices and services when such
accommodations may be necessary to afford a person with a disability equal
opportunity to use and enjoy a dwelling. 42 U.S.C. Sec. 3604(f)(3)(B); see New
York City Human Rights Law, Administrative Code Secs. 8-1 07.3(b),
8-107.5(a)(2); New York State Human Rights Law, Executive Law Secs.
296.2-a(b), 296.5(a)(2). For example, an "occupant only" laundry use rule
would have to be waived to permit a non-occupant to do a mobility impaired
occupant's laundry in an inaccessible laundry room; HUD would not require a
landlord to make the room architecturally accessible as a reasonable
accommodation (54 Fed. Reg. 3248 (1989)) although, as discussed above, New
York City's Human Rights Law might require a landlord to make such alterations
in some situations. Other examples of rule changes are waiving a "no pets"
policy to permit a guide dog (also required by New York State Civil Rights Law
Sec. 47), or modifying a "first come, first served" rule as to parking space
allocation to arrange for a mobility impaired driver to have a space close to
his or her dwelling unit in the building parking lot. 24 C.F.R. Sec. 100.204
An "owner . . . or other person having the right to sell, rent or lease a
housing accommodation," among other things, is required to make reasonable
accommodations (including architectural alterations) to meet the needs of
people with disabilities "in the terms, conditions or privileges of the sale,
rental or lease of any such housing accommodation or in the furnishing of
facilities or services in connection therewith." This covers both
publicly-assisted and private housing accommodations. New York City Human
Rights Law, Administrative Code Secs. 8-107.3(b), 8-107.5(a)(2), 8-108; see
also New York State Human Rights Law, Executive Law Secs. 296.2-a(b),
296.5(a)(2). A " 'housing accommodation' includes any building, structure or
portion thereof which is used or occupied or is intended, arranged or designed
to be used or occupied, as the home, residence or sleeping place of one or
more human beings." Administrative Code Sec. 8-102.10. (One- and two-family
homes are not covered under some circumstances, such as owner-occupancy of
part of the house. Administrative Code Sec. 8-107.5.) The New York City
Commission on Human Rights
"has held that 'reasonable accommodation' requires
places of public accommodation to recognize the unitary
nature of a handicapped individual and the means s/he
chooses to adapt to such handicap. Whenever possible,
the place of public accommodation must make any and all
such accommodations so as to allow the handicapped
individual to function normally, unless the
accommodation causes an undue burden or economic
hardship. (emphasis added) Tartaglia v. Jack LaLanne
Fitness Centers, Inc., N.Y.C.C.H.R. Compl. No.
04153182-PA (June 12,1986) at p. 21. This reasoning is
equally applicable in a housing accommodation context.
- 21 -
" .... It is clear from the foregoing analysis that
both the type of accommodation to be provided by
Respondents, and the financial burden, if any, to be
imposed on Respondents for such accommodation are
issues to be determined by this tribunal after a
full hearing. See Tartaglia v. Jack LaLanne Fitness
Center, Inc., supra. Further, the allegations in the
amended complaint raise new factual issues
concerning Respondents' policy regarding allocation
of common area funds for residents with
New York City Commission on Human Rights, Gertrude Kass and Bernard Kass v.
United Veterans Mutual Housing, No. 2 Corp., New York City Commission on Human
Rights, Complaint No. EM00936-08/14/87-DE, Recommended Decision and Order,
pages 5-6 (April 4,1990). The landlord has settled the complaint with Mrs. and
Mr. Kass on the basis of this recommended decision, but the City Commission is
pursuing issues regarding discriminatory policies. The landlord had removed an
existing ramp, built at the tenants' expense; that removal also may have
violated New York City Building Code Sec. 27-292.4(c). (A final Decision and
Order in this case is expected from the City Commission in the latter part of
1990.) Cf. State Division of Human Rights v. Cohen Bros., New York State
Division of Human Rights, Case No. GCPD39357-75 (August 15,1978) (place of
public accommodation must maintain a ramp at main entrance as a reasonable
accommodation to people with disabilities) aff'd without opinion sub nom State
Division of Human Rights v. Cross and Brown, 83 A.D.2d 993, 443 N.Y.S.2d 671
(1st Dep't 1981).
The Federal Fair Housing Amendments Act makes it unlawful to refuse permission
for reasonable architectural modifications which would enhance the enjoyment
of the premises by an occupant (or prospective occupant) with a disability.
(The word "premises" includes not only the interior of a dwelling unit, but
also the public and common use areas of a building, such as the lobby and
laundry room. 54 Fed. Reg. 3247 (1989).) Unless New York City's Human Rights
Law would require the alteration as a reasonable accommodation, such
renovation, if made at the request of the person occupying or about to occupy
the premises, would be at the expense of that person. 42 U.S.C. Sec.
3604(f)(3)(A). Section 504 of the Federal Rehabilitation Act, implemented
through HUD regulations, requires owners of housing which receives direct or
indirect Federal financial assistance to incorporate accessibility features
when renovating common and public areas, as well as when renovating some
dwelling units. 24 C.F.R. Sec. 8.23.
In the long run, laws requiring construction and renovation of buildings to
provide accessibility and usability for people with all types of disabilities
may be as important as the human rights laws in promoting the integration of
people with disabilities into the mainstream of society. This fact has been
recognized by the incorporation into the Fair Housing Amendments Act and the
Americans with Disabilities Act of provisions requiring architectural
accessibility. (The ADA, which does not affect housing, will be discussed in
later portions of this volume.)
- 22 -
New York City and New York State have been leaders in this field. For several
years, virtually all new construction (including multiple dwellings) in New
York State and New York City has been required to be accessible to people with
all types of physical disabilities under the State Fire Prevention and
Building Code (State Building Code) and City Building Code, respectively; most
renovations of existing buildings must incorporate accessibility features. 9
NYCRR Part 1100; Administrative Code Secs. 27-123.1, 27-292.1 -- 27-292.20, et
al. (New York City's Building Code Accessibility Amendments of 1987 are
frequently known as Local Law 58.) Both Codes use the American National
Standards Institute's Standard A117.1-1986 (with relatively minor
modifications) as their prime reference standard on this issue. Now the
Federal Fair Housing Amendments Act, referring to the same standard and based
in part on Local Law 58, has decreed that, in nearly all multifamily dwellings
constructed for first occupancy after March 13,1991, it will be a
discriminatory housing practice to fail to include accessibility and
adaptability features in design or construction. 42 U.S.C. Sec. 3604(f)(3)(C).
Accessibility and Adaptability
A clarification of the terms "accessibility" and "adaptability" may be helpful
at this point. A place is accessible when people with all types of physical
disabilities can enter and use it without help from someone else. This
generally is required when designing and building areas for general public and
common use, such as lobbies, hallways, mailrooms, laundry rooms, storage
areas, tenant meeting rooms, offices and health clubs. Toilet or bath rooms
outside of individual dwelling units generally are considered accessible when
one of each fixture in the room is accessible. The same is true for banks of
public telephones. Adaptability, on the other hand, relates only to individual
dwelling units. There, basic accessibility to and through the unit is
required, but a few features such as removable base cabinets (in kitchens and
bathrooms) and clothes rods or grab bar supports in bathroom walls are to be
present so that tenants with disabilities can adapt their units without
substantial renovations. Some items may be adaptable or accessible, such as
kitchen sink counters. Unlike prohibitions against discriminatory housing
practices discussed above, which are applicable to virtually all residential
units, accessibility and adaptability requirements under the Fair Housing
Amendments Act apply only to multifamily dwellings, defined as those having
four or more dwelling units. State and City Building Codes define a multiple
dwelling as containing three or more dwelling units.
Current State and City Building Code requirements are similar to those which
will become effective in 1991 under the Federal law. Those Building Codes are
nearly identical in most cases relating to accessibility. All apartments
(including cooperatives and condominiums) in multifamily buildings with
elevators must be accessible and adaptable. In non-elevator multifamily
buildings, all units on all floors with accessible entrance(s) must be
accessible and adaptable under Federal law. Virtually all entrances must be
accessible under the Building Codes. However, with respect to a non-elevator
building, the Codes, unlike the Federal law, only require compliance for a
quarter of the total dwelling units in the building, and then only to the
extent they are on the ground floor (although at least one unit has to
comply). Dwelling unit accessibility features include:
routes into and within the unit, including doorways, sufficient to
allow passage by people using wheelchairs;
light switches, electrical outlets, thermostats and other
environmental controls in accessible locations;
reinforcements in bathroom walls to permit future installation of
kitchens and bathrooms usable by people using wheelchairs.
Under New York City's Quality Housing Program, laundry facilities must be
provided in many new multiple dwellings and must "be accessible to the
handicapped." Zoning Ordinance Sec. 28-24 (1987).
The Federal Architectural Barriers Act, 42 U.S.C. 4151 et seq., requires
Federally built, leased or assisted housing to meet certain Federal
accessibility standards. 36 C.F.R. Part 1190; 41 C.F.R. Subpart 101-19.6.
- 23, 24 -
Alterations, Additions and Repairs
The application of the foregoing requirements in new construction is
relatively straightforward and advances the goal of making the built
environment more universally useful. However, buildings frequently are
renovated rather than replaced. This is especially true in large urban
centers, such as New York City, where it is often less costly to rehabilitate
sound buildings than to demolish them and to start over from the bare ground.
Thus New York State and City's Building Codes provide that, as renovations are
being done, or as the way in which a space is used changes, the owner of the
premises is responsible for incorporating accessibility features. If the
renovations would cost more than half of replacement cost for a building of
similar floor space, the entire building must be brought into compliance; if
fifty percent or less of such replacement cost is being spent on renovations,
only the items otherwise being modified must be brought into compliance.
However, if there is a change in the way in which a building or a space is
being used, it must be made fully accessible (for example, a bank being
converted into a dress shop with little or no physical renovation). New York
City Building Code, Administrative Code Sec. 27-123.1.
It is not always possible to provide accessibility in an existing building as
it is in new structures. In New York City, a waiver procedure involving both
the Department of Buildings and the Mayor's Office for People with
Disabilities per- mits resolution of such practical difficulties in a way
which encourages the greatest possible accessibility. Building Code Sec.
Building owners may want to explore using an Internal Revenue Code provision
which allows a tax deduction of up to $35,000 per year for a business which
removes architectural barriers. 26 U.S.C. Sec. 190.
As discussed above, if the tenant wishes to adapt adaptable features provided
by the owner, that adaptation might be at the tenant's expense, unless it (or
part of it) would constitute a reasonable accommodation under the City's Human
Rights Law. It is less expensive to adapt an adaptable feature than to modify
one which was not designed with adaptability in mind.
In the case of a rental, when architectural alterations are permitted within a
dwelling unit (as opposed to public or common use areas) and do not constitute
reasonable accommodations required under New York City's Human Rights Law, the
Federal Fair Housing Amendments Act permits the building owner (under some
circumstances) to condition approval on a commitment from the renter that the
site of the alteration would be restored to its original condition when the
tenant leaves. 42 U.S.C. Sec. 3604(f)(3)(A). However, it would be unlawful for
the landlord to require restoration in all situations. For example, where grab
bars are installed, the blocking behind the walls to support them need not be
removed, although it may be required that the bars themselves be removed and
that the wall be restored where holes were drilled. If a door is widened to
accommodate a wheelchair, the landlord usually may not require that it be
restored, since the widening would not interfere with use by the landlord or a
future tenant. No restorations could be required in common or public use
areas. While the owner may not require an increase in the routine security
deposit, the owner may negotiate for tenant payments into an interest bearing
escrow account to be used for restoration. The interest would benefit the
tenant. A landlord may not routinely require such escrow payments, but must
make a case-by-case evaluation based upon such factors as the extent and
nature of the proposed modifications, the expected duration of the lease, the
credit and tenancy history of the individual tenant and other facts that may
bear on the risk to the landlord that the premises will not be restored. One
such factor might be local law prohibiting such restoration, as noted below.
The fact of disability is not a permissible consideration in making such a
determination. Of course, alterations need to comply with the local building
code. 24 C.F.R. Sec. 100.203 (1990); 54 Fed. Reg. 3247-49 (1989).
Such restorations of original conditions may be affected by New York City's
Building Code. The Federal law does not interfere with provisions in local
laws which provide for greater access. 42 U.S.C. Sec. 3604(f)(8). New York
City's Building Code states that when a building feature is in compliance with
the City law's accessibility requirements, it may not be altered in a way
which takes it out of compliance. Administrative Code Sec. 27-292.4(c). This
would prohibit some restorations which otherwise might be permitted under
- 24, 25 -
Places of Public Accommodation
Rights of access to and use of public accommodations are recognized for people
with disabilities primarily under New York State and New York City Human
Rights Laws, as well as under the State Civil Rights Law. Places of public
accommodation include, but are not limited to:
clubs, including some which consider themselves private;
transportation facilities; and
retail and wholesale stores and establishments dealing with
goods or services of any kind.
Executive Law Secs. 292 and 296; Administrative Code Secs. 8-102, 8-107 and
8-108; and Civil Rights Law Secs. 40-c and 47. The term "place of public
accommodation" does not limit coverage of the law only to a physical location;
it also includes "the idea . . . in the broad sense of providing conveniences
and services to the public .... " U.S. Power Squadrons v. State Human Rights
Appeals Board, 59 N.Y.2d 401, 410-11, 452 N.E.2d 1199, 1203, 465 N.Y.S.2d 871,
875 (1983). As discussed below, program accessibility is required under Sec.
504 of the Rehabilitation Act where Federal financial assistance is received.
Reasonable accommodation must be made to enable people with disabilities to
enjoy public accommodations.
" 'Reasonable accommodation' requires places of public
accommodation to recognize the unitary nature of a
handicapped individual and the means s/he chooses to adapt
to such handicap. Whenever possible, the place of public
accommodation must make any and all such accommodations so
as to allow the handicapped individual to function
normally, unless the accommodation causes an undue burden
or economic hardship. Philbrook v. Ansonia Board of
Education, 757 F.2d 476 (2nd Cir. 1985); Nelson v.
Thornburgh, 567 F. Supp. 369 (E.D. PA 1983) .... Especially
where, as here, the means employed by the handicapped
individual to overcome his/her handicap is commonly
utilized and almost universally accepted [guide dog], it is
not the prerogative of one who operates a place of public
accommodation to substitute a means [sighted companion to
be chosen by the prospective patron who is blind and to be
admitted without charge] by which a handicapped person will
compensate for his/her impairment. See, Philbrook v.
Ansonia Board of Education, supra.
- 26 -
* * *
"[I]n certain contexts, the means by which a handicapped person chooses to
accommodate his handicap in order to perform 'major life activities' becomes
an extension of that person himself.
* * *
"At times, the assistance of wheelchairs, canes and
artificial limbs are not required by their owners. In the
same way, guide dogs may occasionally be of little use.
However, when such means of accommodation are necessary to
overcome the handicap, it would be both unlawful and
absurd to withhold such form of assistance from the
individual person who wishes and needs to rely on it."
Tartaglia v. Jack LaLanne Fitness Centers, Inc., New York City Commission on
Human Rights, Complaint No. 04153182-PA, Decision and Order, pages 21-22;
18;19 (June 12,1986). See State Division of Human Rights v. Cohen Bros., New
York State Division of Human Rights, Case No. GCPD39357-75 (August 15,1978)
(ramp spanning four steps and three risers required as a reasonable
accommodation to people with disabilities) aff'd without opinion sub nom State
Division of Human Rights v. Cross and Brown, 83 A.D.2d 993, 443 N.Y.S.2d 671
(1st Dep't 1981 ).
Those responding to claims of disability discrimination "have the burden of
demonstrating that disabled persons are not 'otherwise qualified' for an
accommodation or benefit, and that reasonable accommodation is not available."
Daniels v. Queens Lighthouse, New York City Commission on Human Rights
Complaint No. GA001890502899-DN, Decision and Order, pages 1-2 (May 31, 1
"[B]oth the type of accommodation . . . and the financial burden, if any, to
be imposed . . . are issues to be determined by" the pertinent human rights
agency. New York City Commission on Human Rights, Gertrude Kass and Bernard
Kass v. United Veterans Mutual Housing, No. 2 Corp., New York City Commission
on Human Rights, Complaint No. EM00936-08/14/87-DE, Recommended Decision and
Order, page 6 (April 4,1990).
Guide, Hearing and Service Dogs
It is unlawful to discriminate against a person because that person has a
disability and is accompanied by a guide dog, hearing dog or service dog,
either in the use or enjoyment of a public facility, or in employment. New
York Civil Rights Law Article 4-B. The person so protected may keep the dog in
his or her immediate custody and a person who is blind also may keep a cane in
his or her immediate custody. Civil Rights Law Sec. 47-c. The term "public
facility" under this law includes all modes of public and private
transportation, all housing and other buildings into which the public is
invited or permitted, any other places of public accommodation and, as
discussed below, all educational facilities and institutions. Civil Rights Law
Sec. 47; see also State Human Rights Law (Executive Law) Sec. 296.14; City
Human Rights Law (Administrative Code) Secs. 8-102, 8-107.2, 8-108; Tartaglia
v. Jack LaLanne Fitness Centers, Inc., New York City Commission on Human
Rights, Complaint No. 04153182-PA, Decision and Order (June 12,1986).
Buses, as well as all other forms of public and private transportation, must
accept guide, hearing and service dogs, at no extra charge, when accompanying
a person with a disability. State Civil Rights Law (Sec. 47-b). No conditions
or restrictions may be imposed which are not specifically set forth in Civil
Rights Law Article 4-B; that law does not require that the dog be muzzled or
licensed. Sec. 47-b.2. Provisions of Transportation Law Secs. 153 and 209
which had imposed such limitations are superseded (Civil Rights Law
Sec.47-b.6), although the rights of access provided by those Transportation
Law sections remain effective.
As pedestrians, people who are blind have the right of way at all times when
crossing with a guide dog or a white or metallic colored cane at all
intersections and crosswalks, regardless of whether they are crossing with or
against the traffic light. Vehicle and Traffic Law Sec. 1153.
- 27, 28 -
Air carriers are prohibited from discriminating against people with
disabilities, regardless of whether the carrier receives Federal funds.
Federal Air Carrier Access Act, 49 U.S.C. Sec. 1374(c). Airlines are
prohibited from limiting the number of people with disabilities on a flight
and from requiring special advanced notice (except for special equipment, such
as respirators); in most cases, airlines cannot require that people with
disabilities fly with a personal attendant; wheelchairs must be given priority
for carry-on luggage space; and a degree of physical accessibility will have
to be provided in certain aircraft. However, Department of Transportation
regulations permit airlines to deny access to a prospective passenger with a
disability if the person "would be inimical to the safety of the flight"
(although the airline must give a written explanation within 10 days after the
flight). 55 Fed. Reg. 8049 (1990) (to be codified at 14 C.F.R. Sec.
Schools and Other Educational Facilities
Most schools and other educational facilities are excluded explicitly from the
State and City Human Rights Laws' definitions of public accommodations.
However, schools (educational corporations or associations) which are or claim
to be nonsectarian or tax-exempt are prohibited from denying people with
disabilities (students and others) use of their facilities under both State
and City Human Rights Laws. Executive Law Sec. 296.4; Administrative Code
Secs. 8-107.4, 8-108. Among institutions covered by this provision are the
City and State University systems. While other educational facilities may be
exempt under the Human Rights Laws, the State Civil Rights Law (Sec. 47) bars
discrimination "in all educational facilities and institutions, including
those maintained by the state or by any political subdivision thereof" on the
basis of the use of a guide, hearing or service dogs by a person with a
Section 504 of the Federal Rehabilitation Act and the Education of the
Handicapped Act require accessibility, among other things, in many schools not
covered by the State and City Human Rights Laws. Section 504 mandates access
not only for students, but also for parents and employees. Rothschild v.
Grottenthaler, 716 F. Supp. 796, 798-800 (on motion to dismiss); 725 F. Supp.
776, 777 (S.D.N.Y. 1989) (requiring school district to provide sign language
interpreters for deaf parents).
The New York State Hospital Code requires hospitals to
"manage a resource of skilled interpreters and persons skilled in
communicating with vision and hearing impaired individuals and . . . [to]
provide translations/transcriptions of significant hospital forms,
instructions and information in order to provide visual, oral and written
communication with all persons receiving treatment in the hospital regardless
of a patient's language or impairment of hearing or vision .... [llnterpreters
and persons skilled in communicating with vision and/or hearing impaired
individuals . . . [must] be available to patients in the inpatient and
outpatient setting within twenty minutes and to patients in the emergency
service within ten minutes of a request...."
10 NYCRR Sec. 405.7. Treatment is to be provided without discrimination as to
disability. Patients are to be informed of these rights. Id.
The State Department of Health also monitors hospitals and other residential
health care facilities for compliance with applicable statutes and regulations
(Public Health Law Sec. 2803(1)(a)), including State and Federal human rights
laws. County of Nassau v. Axelrod, N.Y.L.J., May 31, 1990, at 30, col. 6 (Sup.
Ct. Nassau Cty. May 25,1990).
- 28, 29 -
Frequently, rights in public accommodations can be enjoyed by a person with a
disability only if that person can gain physical access. In some cases, the
State and City Human Rights Laws are held to require the owner of a place of
public accommodation to make architectural modifications to provide access,
such as building a ramp to the main entrance of an office building and
providing all persons, including people with disabilities, with "the full and
equal use of the accommodations, advantages, privileges and facilities...."
State Division of Human Rights v. Cohen Bros., New York State Division of
Human Rights, Case No. GCPD39357-75 (August 15,1978) (ramp spanning four steps
and three risers required as a reasonable accommodation to people with
disabilities) aff'd without opinion sub nom State Division of Human Rights v.
Cross and Brown, 83 A.D.2d 993, 443 N.Y.S.2d 671 (1st Dep't 1981). Cf. New
York City Commission on Human Rights, Gertrude Kass and Bernard Kass v. United
Veterans Mutual Housing, No. 2 Corp., New York City Commission on Human
Rights, Complaint No. EM00936-08/14/87-DE, Recommended Decision and Order,
pages 5-6 (April 4, 1990) (quoting Tartaglia v. Jack LaLanne Fitness Centers,
Inc., New York City Commission on Human Rights, Compaint No. 04153182-PA,
Decision and Order, page 21 (June 12,1986); and further stating that "both the
type of accommodation . . . and the financial burden, if any, to be imposed .
. . are issues to be determined by" the pertinent human rights agency); but
see Eastern Paralyzed Veterans Association v. Metropolitan Transportation
Authority, 79 A.D.2d 516, 443 N.Y.S.2d 461 (1st Dep't 1980) (State Human
Rights Law did not require affirmative action to make subways accessible; see
the discussion of State Public Buildings Law and State Transportation Law,
below, which require a degree of accessibility).
New York State and New York City Building Codes, discussed in detail above
with respect to housing, also promote architectural accessibility in virtually
all buildings, including places of public accommodation.
Public buildings built or bought with Federal funds are required to be
accessible to people with physical disabilities, as are Federally leased
buildings intended for public use or in which people with physical
disabilities might be employed. Federal Architectural Barriers Act (42 U.S.C.
Secs. 4151 et seq.). New buildings covered by this law are to be built in
compliance with standards set by the Federal Architectural and Transportation
Barriers Compliance Board; buildings are not to be leased (or leases are not
to be renewed) unless the buildings comply with those standards or renovations
are to be done in accord with those standards (36 C.F.R. Part 1190; 41 C.F.R.
Subpart 101-19.6). See also Uniform Federal Accessibility Standards ("UFAS"),
Appendix A to 24 C.F.R. Part 40 (HUD) and to 41 C.F.R. Subpart 101-19.6
(General Services Administration ("GSA")).
Section 504 of the Federal Rehabilitation Act of 1973 does not present an
absolute mandate for structural alterations of existing buildings, but instead
requires architectural accommodations to the fullest extent possible where
other means are insufficient to provide program accessibility. See Americans
Disabled for Accessible Public Transportation (ADAPT) v. Skinner, 881 F.2d
1184, 1192-93 (3d Cir., en banc, 1989). The State Public Buildings Law (Secs.
50 and 51) and Transportation Law (Sec. 15-b) require most public buildings
and facilities (including most of those covered under City and State Human
Rights Law definitions of "places of public accommodation", as well as
schools) financed in whole or in part with State or municipal funds to be
built (or, when existing buildings or facilities are altered, to be altered)
so that they are accessible to and usable by people with disabilities. Public
Buildings Law Sec. 53 will require assistive listening systems for people with
hearing impairments in all new public buildings which contain meeting halls,
hearing rooms, theatres or similar facilities.
New York City's Building Code already requires assistive listening systems for
people with hearing impairments in auditorium and assembly spaces -- whether
or not they are in public buildings -- which install audio-amplification
systems. Administrative Code Sec. 27-292.10(a)(1), RS 4-6 Sec. 4.31.
- 29, 30 -
Section 504 of the Federal Rehabilitation Act requires that recipients of
Federal financial assistance operate programs and services (even those not
directly receiving such aid) in such a way that, when viewed in their
entirety, they are accessible to persons with disabilities.
No person with a disability may be excluded from programs or services of such
recipients because the facilities are inaccessible. Facilities which are new
or which are to be substantially renovated must be made accessible. Even where
existing facilities must be made accessible eventually, until they are,
recipients must use alternative methods of providing services and/or access to
the program, such as alternative sites, home visits, etc. Priority in choosing
alternative methods must be given to those which provide the greatest possible
integration of people with disabilities. Where a program is not accessible, a
transition plan must be developed, with the aid of interested persons
(including people with disabilities), to make the program accessible as soon
as possible. 29 U.S.C. Sec. 794; 28 C.F.R. Secs. 41.56 41.58.
While a recipient of Federal funds need not change the fundamental nature of
its program, it is required to accommodate the known disabilities of a person
to provide meaningful access to that program. Alexander v. Choate, 469 U.S.
287, 301 (1984). This includes taking some affirmative action. Dopico v.
Goldschmidt, 687 F.2d 644, 652 (2d Cir. 1982). In determining what actions are
required, courts will look to the types of items listed as reasonable
accommodations in regulations under Sec. 504. Rothschild v. Grottenthaler, 725
F. Supp. 776, 777-79 (S.D.N.Y. 1989) (requiring provision of sign language
interpreters). As indicated earlier, a similar result is available under New
York City's Human Rights Law. See Administrative Code Secs. 8-108,
8-102.16(e); Tartaglia v. Jack LaLanne Fitness Centers, Inc., New York City
Commission on Human Rights, Complaint No. 04153182-PA, Decision and Order,
pages 21-22;18;19 (June 12, 1986).
- 31 -
The educational rights of children with disabilities have been the subject of
much legislation in recent years at both the Federal and State levels. Such
attention is likely to continue, especially with respect to children ages 0-2.
Significant changes affecting children ages 3-5 were signed into law in July
1989. While particular new State provisions with respect to younger children
have not yet been enacted or amended, the Federal law on which such changes
would be based is sufficiently settled and detailed to permit an overview of
both current and possible future laws in this crucial field. The Education
portion of this book is presented in an order which, while not following the
chronological age of the student, may best permit the reader to understand the
statutory and regulatory framework which has developed. Thus, for example,
those concerned with the education of 3 year olds should first review the
material relating to school aged children.
Ages 5 Through 21
Under Federal and State law, every child with a disability is entitled to a
free appropriate education from age 5 to the end of the school year of his or
her 21st birthday or receipt of a high school diploma, whichever is earlier.
Education is compulsory for children ages 6-16. The special education might
take the form of, among other things, a tutor for one class, a related service
such as physical therapy, a special class, a special day school or a
residential school. Special education includes not only traditional academic
subjects but also instruction in basic functioning skills such as toileting,
dressing, eating and feeding which may be necessary for children who have
severe disabilities. The child's program, known as an Individualized Education
Program ("IEP"), is determined by the child's unique individual educational
Referral and Evaluation
The child enters the special education system through a referral in writing by
a parent, professional staff member of the school which the child attends or
district where the child resides, physician, judicial officer, or other
interested party. The child may also make the referral if he or she is 18 or
older or is an emancipated minor.
The child is entitled to a free evaluation which must be made within 30 days
of the referral. If the referral is made by someone other than the parent, the
Committee on Special Education ("CSE") (discussed below) must first try to
obtain a parent's consent for an evaluation. If the parent does not consent,
the CSE must go to an impartial hearing to get an order from the hearing
officer allowing the CSE to evaluate the child. A parent can also withdraw his
or her consent at any time.
A parent has the right to obtain an independent educational evaluation. The
school district is required to make available a register of public or private
agencies and other profejsional resources within the county where the parent
may obtain an independent evaluation of the child. The school district (for
New York City, this term usually refers to the Board of Education) will pay
for the independent evaluation under certain circumstances, such as when the
district's prsfessionals are unable to evaluate the child in a timely manner.
In addition, if the parent disagrees with the school district's evaluation,
the parent has a right to obtain an independent educational evaluation at
public expense unless the school district initiates an impartial hearing to
show that its evaluation was appropriate. If the hearing officer determines
that the school district's evaluation was appropriate, the parent is not
entitled to receive reimbursement for the independent educational evaluation.
- 31, 32 -
The evaluation must include a physical examination and a psychological
examination performed by qualified physicians and psychologists. New York
Education Law Sec. 4402(c)(3)(a). The evaluation must also include a social
history. 8 NYCRR Sec. 200.4(b)1. The child must also be evaluated in all areas
related to the suspected disability, including, where appropriate, health,
vision, hearing, social and emotional status, general intelligence, academic
performance, vocational skills, communicative status and motor abilities. 8
NYCRR Sec. 200.4(b)(2)vi. The evaluation should also include observation of
the child in his or her current educational placement. 8 NYCRR Sec.
See 20 U.S.C. Sec. 1414(a)(1)(A); 34 C.F.R. Sec. 300.128.
Committee on Special Education
The Committee on Special Education ("CSE") is made up of a school
psychologist, a special education teacher and a parent of a school aged child
with a disability in the school district who is not employed by or under
contract with the school district. Other professionals such as a social
worker, speech therapist or guidance counselor also may participate. A
physician is available to consult with the CSE, but is only required to attend
CSE meetings if the parent makes a written request for one at least
seventy-two hours before the CSE meeting.
The term "handicapped children" is defined as meaning children who are
mentally retarded, hard of hearing, deaf, speech or language impaired,
visually impaired, seriously emotionally disturbed, orthopedically impaired,
or other health impaired children, or children with specific learning
disabilities, who by reason of their disabilities require special education
and related services. 20 U.S.C. Sec. 1401(a)(1). Children may have more than
one disability. 34 C.F.R. Sec. 300.5.
The school district has the burden of establishing the appropriateness of the
classification. Controversies often arise with respect to learning
disabilities and emotional disturbance.
Federal regulations define a learning disability as:
"a disorder in one or more of the basic psychological
processes involved in understanding or in using
language, spoken or written, which may manifest itself
in an imperfect ability to listen, think, speak, read,
write, spell, or to do mathematical calculations. The
term includes such conditions as perceptual handicaps,
brain injury, minimum brain disfunction, dyslexia and
developmental aphasia. The term does not include
children who have learning problems which are
primarily the result of visual, hearing or motor
handicaps, of mental retardation, of emotional
disturbance, or of environmental, cultural or economic
- 33 -
34 C.F.R. Sec. 300.5(9). New York State's present regulations consider a child
to have a learning disability if that child "exhibits a discrepancy of 50
percent or more between expected achievement and actual achievement determined
on an individual basis ...." 8 NYCRR Sec. 200.1(cc)(3). However, there is no
basis in Federal law for this more restrictive State standard.
An emotionally disturbed child is defined as:
"A pupil with an inability to learn which cannot be
explained by intellectual, sensory or health factors
and who exhibits one or more of the following
characteristics over a long period and to a marked
"(i) An inability to build or maintain satisfactory
interpersonal relationship with peers and teachers;
"(ii) inappropriate types of behavior or feelings
under normal circumstances;
"(iii) a generally pervasive mood of unhappiness or
"(iv) a tendency to develop physical symptoms or
fears associated with personal or school problems."
8 NYCRR Sec. 200.1(cc)(2).
The term does not include socially maladjusted pupils unless it is determined
that they are emotionally disturbed. Often, parents believe that their
children are incorrectly labeled emotionally disturbed to remove them from the
regular classroom or other special education classrooms because of behavioral
problems that do not rise to the level of emotional disturbance. The school
district is required to show that the child meets the criteria set forth in
Individualized Education Plan
The school must provide an Individualized Education Plan ("IEP") for each
child with a disability. Each such child is entitled to receive the education
and related services that are appropriate for his or her individual needs. The
IEP is developed at a meeting of the Committee on Special Education ("CSE")
and the parent. The child also may attend the CSE meeting. See 34 C.F.R. Secs.
Parents have a right to see and copy all evaluations and documents in their
child's file and to attend all meetings of the School Based Support Team and
the CSE which discuss their child's case. The parent is entitled to bring an
advocate or translator to all meetings. If the parent makes a request for a
translator five days before the meeting, the school district will provide one
at no cost to the parent.
The school district must attempt to schedule these meetings at times that are
convenient for the parents. Since the professionals on the CSEs may not
personally know the child and may be making decisions based on reports and
documents in the file, it is important that parents take advantage of this
right and attend all these meetings which can determine their child's
educational future. In the event that the parent cannot attend, the CSE is
required to attempt alternative means that would allow for the parent's
participation, including individual and conference telephone calls.
- 34, 35 -
The CSE first meets to discuss Phase I of the IEP. The first part of the IEP
is prepared at the conference with the CSE. The CSE must first determine
whether the child is eligible for special education. If the CSE determines
that the child is not eligible for special education, the parent may appeal
that decision through the due process procedures described below. If the CSE
determines that the child is eligible for special education services, its
report the present levels of performance and indicate the
individual needs of the child in four areas:
academic achievement and learning characteristics;
physical development; and
management needs (defined as "the nature of and degree to which
environmental modifications and human or material resources are
required to enable the child to benefit from instruction." 8
NYCRR Sec. 200.1(hh)9(iv)); and
the classification of the child's handicapping condition;
the annual goals for the child's educational programming;
any specialized equipment and adaptive devices needed for the
child to benefit from the recommended program;
the class size;
the extent to which the child will participate in regular
educational programs, including physical education or adaptive
the projected date for the initiation of services;
the amount of time per day that the child will receive the
any testing modifications that are to be used consistently by
the child in the program; and
the recommended placement.
8 NYCRR Sec. 200.4(c). After a recommendation has been made, the school
district has thirty days to provide appropriate special education programs and
- 35 -
In recommending a program, the CSE should advise the parents of the specific
public or private school where the services are provided. Parents have a right
to see a listing of all school locations for the type of program recommended
for their child's needs. A parent has the right to and should request an
opportunity to visit the school site before consenting to a placement.
As soon as possible after the child is identified as having a disability, but
no later than thirty days after the child enters the recommended special
education program, a planning conference is held to develop Phase ll of the
IEP. The parent and teacher and others involved in the child's education at
the school prepare Phase ll of the IEP. Phase ll includes a statement of
specific short-term goals consistent with the annual goals of the child and
appropriate criteria, procedures and schedules for determining whether the
instructional objectives are being achieved.
Each year, the parent and school staff should develop a new IEP. If any major
changes need to be made, the case also should be reviewed by the CSE. The CSE
is required to reevaluate each student every three years in what is called the
Additionally, if a parent, teacher or administrator believes that the program
or placement recommended in the IEP is no longer appropriate, he or she can
refer the child to the CSE for review. As discussed below, the child has the
right to remain in the current placement pending a new recommendation of the
CSE unless the parents and the school district otherwise agree.
See 20 U.S.C. Sec. 1414(a)(5).
Special Education Principles
Two fundamental principles come into play in special education: appropriate
education and least restrictive environment. Under the Federal Education of
the Handicapped Act, a child is entitled to receive a free appropriate
education in the least restrictive environment.
The Federal Education of the Handicapped Act requires that a child with
disabilities receive personalized instruction and related services that are
designed to enable the child "to receive educational benefits," although it
does not require that a child receive the best possible education. Board of
Education v. Rowley, 458 U.S. 176 (1982). In Rowley, the Supreme Court ruled
that a deaf child attending a Westchester County public school was not
entitled to a sign language interpreter during all of her academic classes.
The school provided a wireless receiver for her FM hearing aid and instruction
from a tutor for the deaf and a speech therapist; the child was performing
"better than the average child in her class and . . . advancing easily from
grade to grade."
- 36, 37 -
Least Restrictive Environment
A child also has a right to instruction in the least restrictive environment.
Generally, this means that a child with a disability has the right to attend a
local public school and to attend classes with children who have no
disabilities to the extent possible. States are required to establish
procedures to assure that
"to the maximum extent appropriate, handicapped children,
including children in public or private institutions or
other care facilities, are educated with children who are
not handicapped, and that special classes, separate
schooling or other removal of handicapped children from the
regular educational environment occurs only when the nature
or severity of the handicap is such that education in
regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily."
20 U.S.C. Sec. 1412(5)(B). The New York regulations define the "least
restrictive environment" as a placement which provides the special education
needed by the pupil to the maximum extent appropriate with other children who
are not handicapped and is determined following consideration of the proximity
of the placement to the pupil's place of residence. 8 NYCRR Sec. 200.1(tt).
The Commissioner of Education has held that a nonpublic or private school
placement is more restrictive than an appropriate public school placement.
Application of a Child with a Handicapping Condition, No. 12109 (January
A related service is one necessary to allow a child to benefit from the
educational program. These services include
"transportation and such developmental, corrective, and other
supportive services (including speech pathology and audiology,
psychological services, physical and occupational therapy, recreation,
and medical and counseling services, except that such medical services
shall be for diagnostic and evaluation purposes only) as may be
required to assist a handicapped child to benefit from special
20 U.S.C. Sec. 1401; 34 C.F.R. Sec. 300.13(a). Related services also may
include parent counseling and training.
If a child with a mobility impairment lives in an inaccessible building and
his or her parents are unable to carry the child to the curb for the school
bus, the New York City Board of Education will provide porter services so that
the child may go to school. Porter services should be included on the IEP, and
must be supported by medical documentation of the child's disability.
- 37 -
Related services include "school health services" which are defined as
"services provided by a qualified nurse or other qualified person." Irving
Independent School District v. Tatro, 468 U.S. 883 (1984). Services which
permit a child to remain at school during the day are related to the effort to
educate the child and thus must be provided, Tatro, unless the services could
not reasonably be provided by a school nurse (who must care for other
children), Detsel v. Board of Education, 820 F.2d 587 (2d Cir. 1987). In
Tatro, the Supreme Court held that a child with spina bifida and a neurogenic
bladder (which prevented her from emptying her bladder voluntarily) was
entitled to Clear Intermittent Catheterization ("CIC") every three or four
hours to avoid injury to her kidneys. This simple procedure may be performed
in a few minutes by a lay person with less than an hour's training. By
contrast, in Detsel, the United States Court of Appeals for the Second Circuit
held that a school district was not required to provide the full-time
assistance of a person trained to monitor the respiratory status and attend to
the physical needs during school hours of a child with severe disabilities.
The child needed "constant" monitoring and the service had to be provided by
an individual at least licensed as a practical nurse. However, in another case
involving the same child, the same court has held that where a child is
eligible for Medicaid home nursing services, Medicaid must provide the
services in school. Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990).
Even where year-round physical therapy is a child's sole special education
program, it may be sufficiently related to an educational program to require
that it be provided. See Holmes v. Sobol, 690 F. Supp. 154 (W.D.N.Y. 1988).
Related services must be provided free of charge to the parent since they are
part of a free appropriate education. However, if the child is eligible for
Medicaid, and if Medicaid will pay for the related service, e.g.,
psychological counseling, physical therapy or speech therapy, the school
district might ask the parents to seek payment from Medicaid. School districts
also are seeking payment for related services from insurance companies of
parents and children where filing for such benefits would not result in
increased cost to the parent or child. A reduction in the total amount of
coverage available is an added cost to the parents.
It is expected that Federal law will add transition-related elements to
"related services" in l990.
State and local school systems are required to offer a continuum of placements
for children with disabilities. Placements may range from a resource room to a
residential school. Brief descriptions of such placements are set forth below:
Resource Room -- A class which students attend for one or more periods a day
for intensive instruction in selected areas of need while the child attends a
regular class for the remainder of the school day.
- 38 -
Special Education Class -- A small, self contained class for students who need
alternative educational approaches to meet their needs for a majority of the
school day. Children are placed in special education classes by their
functional needs and not by their classifications.
Special Day Schools -- A school for students whose special education needs
cannot be met in a regular school, even in a self-contained class.
Summer Programs -- If a child needs special education and/or related services
during the summer to benefit from education, the child is entitled to receive
summer programming. Responsibility for providing summer programming rests with
the Committee on Special Education. Summer programs therefore must be included
in the IEP.
In New York State a child with a disability may receive twelve month programs
if the disability "is severe enough to exhibit the need for a structured
learning environment of twelve months duration to maintain developmental
levels." Education Law Sec. 4402(2)(a). Thus, it may be necessary to show that
a child would regress if summer services were not provided.
Residential Schools -- If a child's educational needs are so severe that a 24
hour a day residential program is necessary, the program, including
non-medical care and room and board, must be provided at no cost to the
parents of the child. A child may not be placed in a residential school unless
there is no appropriate non-residential school available consistent with the
needs of the child.
If a child needs a residential placement for reasons other than educational
benefit, the child may be able to receive such residential services from State
agencies such as the Department of Social Services ("DSS"), Office of Mental
Retardation/Developmental Disabilities ("OMRDD") or Office of Mental Health
Hospital or Home InstrucUon -- A program for those students who, because of
their special needs, are not able to be educated in a classroom.
The CSE may only recommend a placement in a school which uses psychotropic
drugs if the school has a written policy pertaining to such use and the parent
is given the written policy when the recommendation is made.
Timeliness of Placement
In New York City, if the Board of Education does not have a placement for the
child within 65 days after receipt of the parent's consent to the Board's
evaluation of the child, or 75 days after notice of referral for evaluation,
whichever is earlier, the parents are entitled to a "Nickerson Letter," which
provides that they may place their child in an appropriate State-approved
private school day program in accordance with an order of Judge Eugene
Nickerson of the United States District Court for the Eastern District of New
York in Jose P. v. Ambach, December 14,1979, as modified August 3,1988.
Unfortunately, parents may find that there is no appropriate private school
day program that will accept their child. In such a case, the parents have the
right to request an impartial hearing since the school district has a legal
responsibility to provide appropriate placements to all children with
disabilities. If there is no existing program that meets the child's needs,
the school district may be required to create a new program. The school
district must notify the State Education Commissioner if it cannot secure an
appropriate special service or program within the State to meet the needs of
the child. Education Law Sec. 4402(b)(3).
- 39, 40 -
Transition to Adult Services
Many children with disabilities need services beyond age 21 although a child
does not have a legal right to a free appropriate education beyond age 21 or
the receipt of a high school diploma, whichever occurs first. Education Law
Sec. 4403(10)(d). A child who turns 21 during a school year is entitled to
continue in the program until the next June 30th, or the end of the school
year, whichever comes first. If a child entitled to summer programming turns
21 during the summer, the child can continue until the end of the summer
program. Education Law Sec. 4402(5). Changes in Federal law in the fall of
1990 are expected to require expanded transitional services.
Where a child is enrolled in a residential school program, the CSE must give
written notice to the parent that the child is not entitled to tuition free
educational services beyond age 21 when the child attains the age of 18 or, if
the child is over 18 when placed in a residential program, at the time of
placement. The written notice must detail the opportunity for the parents to
consent to have the child's name and other relevant information forwarded to
the Commissioner of Mental Health, the Commissioner of Mental Retardation and
Developmental Disabilities, the Commissioner of Social Services or the
Commissioner of Education or their designees, for the purpose of determining
whether the child will need services after reaching age 21 and, if so,
recommending possible adult services. If an agency determines that it is not
responsible for providing services, the CSE may forward the report to another
State agency or, if there is a dispute as to which State agency has the
responsibility for determining and recommending adult services, to the Council
on Children and Families. Education Law Sec. 4402(5)(e).
Similarly, for children in non-residential programs, upon the first annual
review after the age of 15, the committee shall provide the parent with a
written notice that the child is not entitled to receive tuition free
educational services after receipt of a high school diploma or the age of 21,
and ask for consent to forward information to the relevant State agency for
determining and recommending adult services.
See generally Education Law Secs. 4402, 4403.
- 40 -
Placing a child in an appropriate educational setting is a subjective
challenge. The special needs of the child must be determined and monitored as
they change; parents, educators, specialists in special education,
administrators and others all have roles in this continuing process. Thus,
unlike other areas considered in this volume, the substantive rights available
here and the process by which they sometimes must be secured are so thoroughly
intertwined that this process is covered here in more detail than in other
Procedural protections are provided for parents, guardians and children. 20
U.S.C. Sec. 1415. The parents or guardians have the right to examine and copy
all relevant records with respect to their child. They also may obtain an
independent educational evaluation of the child.
In order to protect the rights of the child when the parents are not known or
not available or when the child is a ward of the State, a person must be
assigned to act as surrogate for the parents or guardian. The parent or
guardian is entitled to written notice whenever an educational agency proposes
to initiate or change or refuses to initiate or change the identification,
evaluation, or educational placement of the child. The notice must be in the
native language of the parent or guardian, unless that is not feasible.
Furthermore, the parent has the right to make complaints about the CSE's
referral, classification, placement recommendation, or the provision of free
appropriate education by requesting an impartial hearing.
Status Quo Placement
During the pendency of any proceedings relating to the initial identification,
evaluation and placement of the child as well as any other proceedings such as
impartial hearings, the child shall remain in his or her current educational
placement unless the State Education Commissioner or local school district and
the parents agree on another placement. Education Law Sec. 4404(4). The United
States Supreme Court has held that this "status quo" or "stay put" provision
has no emergency exception for a dangerous or disruptive child. Honig v. Doe,
484 U.S. 305 (1988).
If the child is applying for initial admission to a public school, the child
is entitled to be placed in the regular public school program unless the
parties agree on another placement. Education Law Sec. 4404(4). In New York
City, the Board of Education generally requires that the parent consent to the
initial placement in a public school program, but parents retain their due
process rights to challenge the placement. The parents may indicate that they
consent to the public school placement as an interim measure. In any event,
the law is clear that parents have the right to request an impartial hearing
to complain about their child's educational placement at any time. If the
parents have been unable to obtain the agreement of the State Education
Commissioner or the school district to a suitable interim placement, they may
make a request to the impartial hearing officer for an interim placement.
- 41 -
The impartial hearing generally is conducted at the local school board level;
in New York City, it is held at the New York City Board of Education. The
Board of Education has a separate office, the Office of Impartial Hearings,
which handles the due process proceedings. The school district is required to
make available upon demand a list of its hearing officers, including their
qualifications. 34 C.F.R. Sec. 300.507(c).
At the impartial hearing, the parent has the right to:
be accompanied and advised by an attorney and by specialists
in the fields of disability and special education (although a
parent may proceed without such helpful assistance);
compel the attendance of witnesses;
present evidence, as well as confront and cross-examine
bar the introduction of any evidence not disclosed at least
five days before the hearing date;
have the child present at the hearing;
have the hearing open to the public; and
receive a transcript of the hearing and written findings of
fact and decisions.
34 C.F.R. Sec. 300.508. Impartial hearings are informal administrative
hearings, so the formal rules of evidence do not apply.
The school district is required to notify the parent of any free or low-cost
legal and other relevant services available in the area, either upon request
or if either the parent or the school district initiates a hearing. 34 C.F.R.
As a general rule, the parents and/or their attorneys should present at least
one professional who is familiar with the child to support the parents' case.
When there is a dispute about the appropriateness of the school system's
program, it is often important to have a qualified expert visit the program.
If an expert is unable to attend the hearing, his or her evaluation may be
submitted at the hearing without his or her testimony.
The hearing officer is required to reach a decision within 45 days after the
request for a hearing. 8 NYCRR 200.5(c)(10). However, the hearing may be
adjourned upon consent of the parties or by the hearing officer. Where the
hearing officer does not reach a decision in a timely manner, the proper
remedy is to seek an order of the State Education Commissioner directing the
hearing officer to reach a decision.
Appeal to the Commissioner
After a decision by the impartial hearing officer, an aggrieved party has the
right to appeal to the Commissioner of the State Education Department within
30 days. If no appeal is made, the decision of the hearing officer becomes
final. The institutional impartiality of the Commissioner in reviewing
appeals is under legal challenge as this is written.
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Complaints in Federal and State Court
After a decision by the Commissioner of Education, an aggrieved party may file
an action in State or Federal court within four months. Adler v. Education
Dep't, 760 F.2d 454 (2d Cir. 1985). The proceeding in State court is by
Article 78 of the Civil Practice Law and Rules. The State court will only
overrule the Commissioner if the Commissioner's decision was "arbitrary and
capricious". In contrast, in Federal court, the standard used is the
"preponderance of the evidence" and the parent may present additional
If the original placement proposed by the school district is found not to be
appropriate and the parent placed the child in an appropriate program in a
State-approved school, the parent is reimbursed for any tuition paid.
Burlington School Committee v. Department of Education, 471 U.S. 359 (1985)
(local school district liable for reimbursement).
If the child was wrongly denied placement in an appropriate program during the
due process procedure, the school district may be required to remedy the
situation by paying for compensatory education, even when that would extend
beyond the year of the child's 21st birthday. Burr v. Sobol, 888 F.2d 258 (2d
Cir. 1989), cert. denied, 109 S. Ct. 1298 (1990).
The law is unsettled as to whether damages may be awarded to parents and
children. One court has held that, "[s]o long as the school district and the
state make a good faith effort to evaluate and place a child correctly,
damages are not an appropriate remedy under" the Education of the Handicapped
Act. Gerasimou v. Ambach, 636 F. Supp. 1504 (E.D.N.Y. 1986).
Attorney's fees are considered in a later chapter.
Infants, Toddlers and Preschool Children
As mentioned earlier, special education for children ages 0-5 recently has
been in a state of flux, mainly as a result of the Federal Education of the
Handicapped Amendments Act of 1986 (P.L. 99-457). Different programs are
mandated for infants and toddlers (ages 0-2) (20 U.S.C. Sec. 1471 et seq.,
"Title 1") than for preschool children (ages 3-5) (20 U.S.C. Sec. 1400 et
seq., "Title ll"). Since the 3-5 age group now is treated similarly to the
school age children discussed above, we will turn to these preschool children
before addressing infants and toddlers.
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Title ll requires that preschool services be provided to all children with
disabilities who are aged 3 to 5. This new law expands the coverage of P.L.
94-142 (school age children) to such preschool children. States are required
to provide a free appropriate education pursuant to Individualized Education
Programs ("IEPs") developed by a CSE. Although New York State had developed an
extensive system of preschool education for children with disabilities who are
aged 0 to 5, the United States Department of Education required that this sys-
tem be modified for children aged 3 to 5.
As mentioned above, the necessary State legislation was signed into law on
July 5,1989, as Chapter 243 of the Laws of 1989. This legislation shifted
responsibility for the provision of special education services for children
ages 3-5 from the Family Court to local school districts. Many of the concepts
discussed above concerning school age children now apply to preschool
children. The following discusses the system used in New York City, although
procedures throughout the State should be similar.
Children with handicapping conditions are eligible to receive preschool
services beginning on September 1st of the calendar year in which they become
3 years old, or on January 1st of that year if they will reach 3 on or before
April 1st and are not already receiving services under Sec. 236 of the Family
Court Act (discussed below under Infants and Toddlers).
Referral and Evaluation
Each school district is required to appoint a Committee on Preschool Special
Education ("CPSE") comprised of a professional employed by the school
district, a parent of a child with a handicapping condition, a professional
who participated in the evaluation of the child for whom services are being
sought, and a professional designated by the agency serving the child as an
infant or toddler, if appropriate; the municipality also may appoint a
professional to the Committee. New York Education Law Sec. 4410.3. New York
City has a CPSE in every community school district.
A referral is made in writing to the Chairperson of the CPSE serving the
geographical area of the parent or legal guardian's residence, indicating that
the child is suspected of having a handicapping condition. A referral may be
made by a parent or legal guardian, a licensed physician, a public agency
representative, a judicial officer, or a professional staff member of a school
district, an Early Childhood Direction Center, a program serving children ages
birth to 3, an approved preschool program serving children ages 3 to 5, or a
program familiar with the child. 8 NYCRR Secs. 200.4(a)(1)(i)(v);
200.16(b)(1). Upon receipt of the referral, the CPSE issues to the parent a
list of approved evaluation sites. New York Education Law Sec. 4410.4.b.
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The parent may choose an evaluation site from the list to conduct a
multidisciplinary assessment at no cost to the parent. However, parents may
choose to use health insurance to pay for the cost of such evaluations (if
their insurance provides such coverage). The assessment looks at the child's
present level of performance, learning characteristics, social, emotional and
physical development and management needs. At a minimum, the assessment
process includes a physical examination, a social history, a psychological
evaluation, and other suitable assessments which are necessary to determine
whether a child has a handicapping condition. The evaluation site has twenty
days from receipt of the parent's consent to conduct the multidisciplinary
assessment. When the assessment is completed, a CPSE review is scheduled and
the parent receives a summary of the evaluation.
A CPSE meeting then is held, attended by at least the CPSE chairperson, a
parent of a child with a handicapping condition and a parent or guardian of
the child being reviewed. The Committee reviews information presented by the
child's parent or guardian and the child's teacher, the evaluation results and
information provided by an early intervention program, if appropriate. New
York Education Law Sec. 4410.5.a. The CPSE then determines whether the child
has one of the eleven educationai handicapping conditions discussed above with
respect to school age children. See 8 NYCRR Sec. 200.1(cc)(1)-(11). If the
child is considered to have such a condition, the Committee develops a Phase I
IEP which includes a recommendation for appropriate services and programs. The
CPSE must provide a recommendation to the Board of Education within 30 days
after receipt of the parent's consent for evaluation. 8 NYCRR Sec.
The completed Phase I IEP and clinical and educational documentation is sent
to the Board of Education's Central Based Support Team which must determine
within 30 days from the date of the CPSE recommendation the appropriateness of
the recommended program and services. Placement is determined in accordance
with the concept of the child's right to a free appropriate public education
in the least restrictive environment. Prior to July 1, 1991, the Board of
Education will be responsible for the provision of special education services
to preschool children only to the extent that there are approved programs
available. The Board is not required to open new programs until July 1991.
Presently, there are no preschool programs operated by the New York City Board
of Education. All services in New York City are delivered by non-public
schools with which the Board has contracted.
Consistent with the concept of the least restrictive environment, there is a
continuum of service option for preschool children with handicapping
Itinerant service -- Such services can include speech therapy, physical
therapy, occupational therapy, counselling or a one-to-one aide. Related
services are provided by appropriately certified professionals. If one
itinerant service is provided, it may be provided on the site of a non-special
education program, such as a day care center or Headstart program. When two or
more itinerant services are provided, they must be offered at a preschool
special education program approved by the State Education Department. New York
Education Law Sec. 4410.1.9.
Special education itinerant services -- These include itinerant teacher and
resource room services and are provided by a preschool special education
- 44, 45 -
Special class -- A self-contained class with a maximum of twelve preschool
children, led by one special education teacher and assisted by one
paraprofessional, is provided by a preschool program approved by the State
Education Department. Preschool children with handicapping conditions must
receive such service for at least 21/2 hours per day, 2 days per week. The age
range in a special class cannot exceed 36 months unless a variance has been
obtained. Appropriate related services may be provided. 8 NYCRR Sec.
Special class in an integrated setting -- This differs from a special class
described above in that children without handicapping conditions may be
included in the class or, even if none are, the class may be housed in a
building providing preschool classes to children without handicapping
Home-based program -- These services, provided at the child's home, include at
least 2 hours per week of special education services from a special education
teacher. Related services also may be provided. 8 NYCRR Sec. 200.1
Transition program -- A combination of home- and center-based services are
provided to a preschool child who is making the transition from home to
school. These services are to be provided for a minimum of 2 hours per week at
home and at least 3 hours per week at another location. The transition must be
completed within one year or less. 8 NYCRR Sec. 200.16(i)(3)(iii).
Residential program -- In-state special education programs may be provided by
a program approved by the State Education Department. Such placement must be
approved by the Commissioner of Education. 8 NYCRR Sec. 200.1 6(i)(3)(iv).
The CPSE may recommend placement in a program that uses psychotropic drugs
only if the program has a written policy pertaining to such use and the parent
is given a copy of such written policy at the time such recommendation is
made. New York Education Law Sec. 4410.5.b.(1).
At a minimum, services or programs must be furnished between the months of
September and June. Preschool children whose handicapping conditions require a
structured environment of twelve months duration to maintain developmental
levels are entitled to such services during July and August upon
recommendation of the CPSE. New York Education Law Sec. 200.16(3)(v).
Preschool children are entitled to transportation at public expense to and
from special services and programs. New York Education Law Sec. 4410.8.
Within 30 school days after the date the child begins a recommended program, a
Phase ll IEP planning conference must be held. The required participants at
the conference are the child's teacher and parent or guardian, although others
may attend. During the Phase ll IEP conference, short-term objectives
consistent with Phase I IEP goals, as well as measured criteria to determine
mastery of instructional objectives, are to be developed. The parent or
guardian is to be given a copy of the completed Phase ll IEP. 8 NYCRR Sec.
200.4(e); Sec. 200.16(f). The appropriateness of the child's placement is to
be reviewed on an annual basis. 8 NYCRR Sec. 200.16(g).
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Parents are given procedural due process rights similar to those applicable to
school age children, discussed above. A parent must receive notices of
meetings, recommendations and placements. The initial evaluation and initial
placement are subject to parental consent. Parents are entitled to an
impartial hearing if they disagree with the recommendations of the CPSE and/or
of the Board of Education, or if the Board of Education fails to implement any
recommendation. The results of such impartial hearings may be appealed to the
Commissioner of Education. New York Education Law Sec. 4410.7; 8 NYCRR Sec.
Infants and Toddlers
Unless and until new State legislation consistent with Title I of the Federal
Education of the Handicapped Amendments Act of 1986 is enacted, possibly in
1991, New York State's current system for educating children with disabilities
before they reach school age will be in effect, at least for children ages
Currently, then, an infant or toddler who requires special education services
and transportation may receive those services under order of a Family Court
Judge, based on a petition submitted by the child's family. Family Court Act
Sec. 236. The family's ability to pay for the services is not considered by
the Family Court. The county of the child's residence, which is charged with
the expense, may receive up to 50% reimbursement from the State. In New York
City, it is the City, rather than the individual counties, which is assessed
the cost. State reimbursement requires compliance with Guidelines for the
Development of Programs for the Education of Children with Handicapping
Conditions, issued by the State Education Commissioner in July 1987. See
Chapter 683 of the Laws of 1986.
The system by which Family Court orders are obtained and preschool services
are made available, while complying with the Guidelines, varies around the
State. The system discussed below is that used in New York City.
Eligibility -- A child who has not turned three by December 31
is eligible for services.
Referral and Evaluation -- A child usually is referred for
early childhood intervention by a parent, physician or clinic.
An evaluation then is done by a hospital, clinic, clinical
staff of a preschool program, or another appropriate program
which may be suggested by Early Childhood Direction Centers
which are part of the State system. The multidisciplinary
evaluations must include a medical/physical evalua- tion,
psychological evaluation, social history and any other
appropri- ate assessments required to substantiate the
suspected disability (for example, a speech and language
evaluation if a speech impairment is suspected). Testing may
not be done without parental consent. Tests must be conducted
in the child's native language, if appropriate.
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Classification, IEPs, Placement, Related Services,
Transportation and Due Process -- These areas are much the same
as described above for school age children. However,
Self-contained Center Based Pro- grams also are available as
preschool placements. These must be of- fered for a minimum of
two and one half hours a day, five days a week, although a
child would be enrolled for a level of services which meets his
or her needs. (This does not mean that a parent must or should
agree to a center's request to waive part of the program it is
required to offer.) Home based programs are available which
must offer a min- imum of two hours per week of assistance from
a special education teacher.
Family Court Order Process -- When children are accepted for
place- ment in a preschool setting, the preschool provider or a
parent must obtain approval from the Central Based Support Team
("CBST") of the New York City Board of Education and then
submit a petition to the Family Court in the county where the
petitioner resides. Since this process frequently takes several
months, children often are accepted into and begin to attend a
preschool program pending Family Court approval.
Title I of the Federal Education of the Handicapped Amendments Act of 1986
provides grants to assist States in developing an interdisciplinary program of
early intervention services for infants and toddlers with disabilities.
Compliance with its requirements would change New York State's current
process. While compliance is not absolutely mandated, it is favored by some in
the disability community and State legislation to bring about the change is
being proposed by the Governor. Final details of the bill, and even its
passage, are uncertain.
Among the conditions which States must satisfy in order to receive funds under
Title I are establishing time lines to assure the availability of services,
insuring development of Individual Family Service Plans, developing procedural
safeguards and creating a State Interagency Coordinating Council. Each State
must designate a lead agency to coordinate services which may be provided
under the Family Service Plans. New York State has designated the Department
of Health as the lead asency; for older children, the Department of Education
plays a similar role. The Governor has appointed the required Interagency
Coordinating Council. Regional Planning Groups nave been established to
inventory existing services and resources, promote interagency coordination
and make recommendations to the Department of Health.
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The educational rights of people with disabilities who want to pursue college
and graduate school are very different from the rights they had in public
elementary and secondary schools. People with disabilities are protected from
discrimination in college and graduate schools by City and State
antidiscrimination laws and, where schools receive Federal funds, by Sec. 504
of the Rehabilitation Act. The New York City and New York State Human Rights
Laws prohibit "an education corporation or association which holds itself out
to the public to be nonsectarian and exempt from taxation pursuant to the
provisions of article four of the real property tax law. . . [from] deny[ing]
the use of its facilities to any person otherwise qualified, by reason of his
... disability .... " New York State Executive Law Sec. 296.4; see New York
City Administrative Code Sec. 107.4. Among colleges and universities covered
are the City and State Universities.
The application process for most colleges and universities involves several
steps: application, testing, and in some cases an interview. During the
admissions process, the college or university generally may not inquire
whether the applicant has a disability unless it is taking action to improve
participation by people with disabilities, and then only if the response is
voluntary and may not result in any sanction. After admission, colleges and
universities may inquire as to disabilities that require accommodation.
Colleges and universities may not make use of any test or criterion that has a
disproportionate, adverse effect on people with disabilities except where the
test has been validated as a predictor of success in the education program in
question and no substitute is available. 34 C.F.R. Sec. 104.42(b)(2). Testing
modifications such as Braille, large type and taped tests, readers, and
untimed tests are available for many standardized tests, such as the SAT, GRE,
and LSAT. Testing companies sometimes flag individual test scores to indicate
that the individual was tested under modified conditions. This practice may be
subject to legal challenge.
Colleges and graduate schools are prohibited from discriminating in admissions
against a "qualified handicapped person" -- one "who meets the academic and
technical standards requisite to admission or participation in the recipient's
education program or activity." 34 C.F.R. Sec. 104.3(k)(3). However, the
Supreme Court found it permissible to deny admission to a nursing program
applicant with a hearing impairment who would need close, individual attention
by a nursing instructor to ensure patient safety if she participated in the
clinical phase of the program because a "fundamental alteration in the nature
of the program is far more than the 'modification' the regulation requires."
If a reasonable modification or adjustment to the program could have been made
to enable the applicant to participate in the program, the college would have
been required to make it. Southeast Community College v. Davis, 442 U.S. 399
- 49 -
Once admitted, students with disabilities are entitled to equal treatment and
equal opportunity. As discussed below, they are also entitled to reasonable
accommodations, including academic adjustments. Qualified students may not be
excluded or otherwise subjected to discrimination under any academic,
research, occupational training, housing, health insurance, counseling,
financial aid, physical education, athletics, recreation, transportation, and
other extracurricular education programs. 34 C.F.R. Sec. 104.43(a). Where a
school considers participation in activities operated by others to be
equivalent to education or a program or activity operated by the school, such
as an externship with a non-profit organization, the school must assure itself
that the other operator of that program or activity provides an equal
opportunity for the participation of qualified persons with disabilities. 34
C.F.R. Sec. 104.43(b). Colleges and universities also are required to operate
their programs and activities in the most integrated setting appropriate
34 C.F.R. Sec. 104.43(d)
Academic Adjustments & Other Reasonable Accommodations
Colleges and graduate schools are required to make such modifications in their
academic requirements as are necessary to ensure that the academic
requirements do not discriminate on the basis of disability. 34 C.F.R. Sec.
104.44 (a). Thus, depending on the facts, the law may require a college to
waive a foreign language requirement for a student with a specific learning
disability who is majoring in American history while the college may require a
clinical proficiency exam for a student with a disability affecting manual
dexterity in an optometry course.
Specifically excluded from this rule are academic requirements essential to
the program of instruction being pursued by the student or to any directly
related licensing requirement. 34 C.F.R. Sec. 104.44(a). Some adjustments that
may be reasonable include:
Changes in the length of time permitted for the completion of
Substitution of specific courses required for the completion of
degree requirements; for example, a student with dyslexia may be
allowed to substitute courses in the history or culture of a
foreign country for a foreign language requirement; and
Adaptation of the manner in which specific courses are
conducted; for example, allouing blind or dyslexic students to
tape lectures rather than take notes.
- 50 -
34 C.F.R. Sec. 104.44(a).
Furthermore, course examinations must use methods for evaluating students
with disabilities which require use of their sensory, manual or speaking
skills that will best ensure that the examination or other evaluation
reflects each student's achievement in the course rather than the impaired
sensory, manual or speaking skills, except where such skills are the factors
that the test purports to measure. 34 C.F.R. Sec. 104.44(c).
Colleges and graduate schools may not prohibit the use of tape recorders,
guide dogs, or other aids, where this would have the effect of limiting the
participation of a student with a disability. 34 C.F.R. Sec. 104.44(b).
Recipients of Federal funding are required to ensure that students with
disabilities are provided with auxiliary aids, including taped texts,
interpreters for students with hearing impairments, readers for students with
visual impairments, classroom equipment adapted for use by students with
manual impairments and other similar services and actions. 34 C.F.R. Sec.
The college or university must provide auxiliary aids free of charge as a
reasonable accommodation where "[p]rovision of free auxiliary aids would not
result in . . . [the university]'s having to fundamentally alter or
substantially modify the character of its programs." United States v.
University of Alabama, C.A. No. 86-C1779-S, N.D.Ala. 12/30/88, slip op. at 7,
26-27. The court held that the university could not apply a financial needs
test to determine eligibility for free auxiliary aids. These accommodations
need only be made if they are reasonable and will not substantially alter the
school's program. In cases where the provision of such assistance by the
school would not be required, vocational rehabilitation or other agencies
might be of some help.
Students may be asked to substantiate their disabilities and their need for a
particular accommodation. Past special education records may be sufficient,
at least where the student recently graduated from high school. If the
records are more than three years old, the school may request a more recent
evaluation. Students are usually expected to pay for their own evaluations.
Generally, the student who needs accommodation has the obligation to request
the accommodation. It is always a good idea to request accommodation in
advance. Thus, if a student needs to have a reduced course load, the student
should request this accommodation before the semester begins.
Federal regulations under Sec. 504 require "program accessibility" -- that no
person with a disability can be denied the benefits of or excluded from
participation or otherwise subjected to discrimination because the facilities
are inaccessible or unusable by people with disabilities. 34 C.F.R. Secs.
104.21, 104.22(a). Program accessibility is discussed in detail earlier in
the section on Public Accommodations.
If housing is offered to students who do not have disabilities, then
comparable, convenient and accessible housing must be provided at the same
cost to students with disabilities. 34 C.F.R. Sec. 104.45(a). The available
housing must be provided in the "most integrated setting appropriate". 34
C.F.R. Sec. 1 04.43(d).
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Education As a Public Accommodation
Colleges and universities are not the only schools which may be viewed as
public accommodations. As discussed more fully under Public Accommodations,
although public schools generally are excluded from coverage under State and
City Human Rights Laws, protection is provided by Sec. 504 of the Federal
Rehabilitation Act and (as to people who have disabilities and use guide,
hearing or service dogs) by the State Civil Rights Law. Again, as described
above, schools which are or claim to be private nonsectarian or tax-exempt
are prohibited from discriminating against people with disabilities under the
State and City Human Rights Laws. The protections mentioned in this paragraph
apply to elementary and secondary schools and training programs as well as to
post-secondary education (colleges and universities). Such protections also
apply to employees and visitors (for example, a student's relatives) -- not
only to students. Rothschild v. Grottenthaler, 716 F. Supp. 796, 798-800 (on
motion to dismiss); 725 F. Supp. 776, 777 (S.D.N.Y. 1989) (requiring school
district to provide sign language interpreters for deaf parents).
The Federal Rehabilitation Act protects children whose disabilities do not
adversely affect their educational performance to the degree that they need
special education (for example, a child who is HIV positive). However, when
claims could be made under either the Rehabilitation Act or the Education of
the Handicapped Act, the administrative remedies in the due process
procedures of the Education of the Handicapped Act must be exhausted before a
civil action may be filed in Federal court. 20 U.S.C. Sec. 1415(f).
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