The ADA and Title II Public Entities

SUMMARY: The ADA ensures access by people with disabilities to buildings, facilities, programs, services, and activities offered by state and local governments (public entities). These include voting sites, public schools, town halls, and much more.

Title II of the Americans with Disabilities Act (ADA) requires that people with disabilities have equal access to state and local government programs, services, and activities—and therefore the opportunity to engage in civic life. In fact, Title II covers many aspects of what defines us as Americans—including the right to vote at the polls, attend government meetings, and go to school. It also includes having needs met by government agencies during emergencies, and much more.

Building and Facilities

Title II covers all state and local government locations. An example is public schools. This includes elementary schools, middle schools, and high schools, as well as public colleges and universities. Polling locations are covered under Title II, as are places like public libraries, municipal buildings, and town playgrounds. Additional places are state parks, public beaches, county courthouses, state prisons, and much more.

State and local government buildings and facilities built after January 26, 1992, must comply with the ADA Standards for Accessible Design. Also, alterations that have occurred since that date (if the alterations impact a building’s usability), must follow those standards.

Program Accessibility

A common misconception is that older buildings are grandfathered under the ADA, so if a building dates from before 1992, there is no requirement to provide access to activities that occur inside the building. This is completely false. Title II tells us that when a public entity offers programs, services, or activities in a physically inaccessible location, the public entity still must provide equal access to these activities. This ensures equal access for people with disabilities while balancing the feasibility of making every public building built prior to 1992 fully accessible. Think of your local government facilities, such as courthouses, emergency shelters, and libraries, as well as developed areas like parks and playgrounds. Most likely, several were built before 1992.

Examples of services, programs, and activities of a public entity include public education, public transportation, municipal recreation, social services, voting sites, town meetings, public transportation, health care, courts, and town meetings, among many others.

The obligation to achieve program accessibility applies to all public entities, unless doing so would fundamentally change the nature of the program or activity, or result in an undue administrative or financial burden for the public entity. If so, the public entity must take action to ensure that people with disabilities have equal access, such as moving a program or service to another location that is accessible.

Integration

A key goal of the ADA is to guarantee that people with disabilities have an equal opportunity to enjoy the same services, activities, and programs as people without disabilities—in the most integrated setting possible that is appropriate to their needs. This includes people with disabilities in the broader community. An example can be seen in public schools, where students with disabilities attend classes along with their peers. In some cases, specialized programs for those with disabilities may be warranted and benefit people with disabilities. Even so, public entities cannot mandate that individuals with disabilities attend specialized programs. People with disabilities may choose to participate in the “regular” program.

Examples of Equal Access

How can equal access be provided? There is no “one size fits all” solution to achieve program accessibility.

Town Resident with a Water Bill

Here is one example. A town resident with a disability wants to ask a question about their water bill in person at the local borough hall. The process by which the public meets with town officials is considered a service of the town, so people with disabilities must be able to meet with the town representative to discuss their water bill, just as other residents can. If the town representative has an office on the second floor of the borough hall, and the hall (built in 1975) does not have an elevator, the town representative could offer to meet in an accessible conference room on the first floor.

This is what program accessibility is about—coming up with alternate, sometimes creative, solutions to provide equal access for people with disabilities when physical barriers pose problems.

Public Schools

Public schools are often used in examples of program accessibility, as many schools were built prior to 1992. If a district does not have the resources to make all its schools physically accessible, it may be acceptable under certain conditions for a percentage of schools to be renovated to be accessible as long as children with disabilities have equal access to the education system. This equal access includes extracurricular activities and other opportunities offered by the school system. The district also must consider how far a student with a disability would have to travel to attend a school with accessible features—it would not be “equal” to require a student with a disability to travel much farther than other students do. In smaller districts this might not be a challenge, but in larger cities with hundreds of schools, distance becomes critical in determining if equal access is provided.

Policy Barriers

Sometimes a barrier to participation for people with disabilities is a policy. For this reason, the ADA requires that public entities reasonably modify their policies, practices, and procedures to allow the participation of people with disabilities. Here are a few examples:

  • A city recreation program has a “No Pets” policy, but the program amends that policy to allow a participant to attend with their service animal.
  • A librarian typically doesn’t provide assistance to people filling out an application for a library card, but the librarian provides assistance to a patron with a disability to fill in the application when they ask for help.
  • A state requires residents to show a driver’s license when applying for certain services. This is a problem because many people with disabilities cannot drive. As an alternative, the state could offer state-issued non-driver IDs.
  • In some cases, assistive technology or other types of adaptive equipment can help someone with a disability access a public entity’s services or programs. For example, someone who is blind might request that materials are emailed to them (instead of sent by mail), so they can use their screen reading software to review the materials.
  • Providing sign language interpreters at public meetings when requested is an example of achieving program accessibility for individuals who are deaf.

Effective Communication with Auxiliary Aids and Services

The last two examples above are examples of a service being provided to a person with a disability in order to ensure effective communication. Title II requires that public entities assist with communication by offering auxiliary aids and services as needed. A few examples are providing things such as:

  • Qualified interpreters on-site or through video remote interpreting (VRI) services
  • Notetakers
  • Real-time computer-aided transcription services
  • Providing written materials; exchanging written notes
  • Telephone handset amplifiers
  • Assistive listening devices
  • Telephones that are compatible with hearing aids

Who Pays?

Speaking of adaptive equipment and interpreters, the ADA does not allow public entities to pass along the costs for these types of services to individuals with disabilities. Surcharges are prohibited. The public entity is responsible for paying for any auxiliary aids or services, or accommodations and modifications to services, programs, and activities.

Voting Accessibility

A cornerstone of American democracy is the right to vote. People with disabilities may experience barriers when trying to vote that people without disabilities do not. This creates inequity. It also segregates voters with disabilities.

Title II requires access to state and local government polling locations. It also requires public entities to reasonably modify policies and procedures to allow people with disabilities to vote.

Polling locations are often in public buildings such as schools, firehouses, and libraries. As we discussed earlier, these facilities have obligations to provide program accessibility. When polling locations are selected, it is important to consider their accessibility. If a site is inaccessible, special measures must be taken to improve access on Election Day. This involves planning ahead to ensure accessibility. For example, if steps go up to the front door of a fire station that is hosting a polling site, clear signage must mark an accessible route into the fire station (perhaps through the overhead garage doors). And, it’s not just about the law; showing up to vote while using a wheelchair and being faced with steps can be frustrating—and incredibly insulting.

Title II requires state and local boards of elections to provide appropriate auxiliary aids and services for people with disabilities so they can vote in privacy without having to ask for assistance.

Additional federal laws also protect the voting rights of people with disabilities, including the Help America Vote Act (HAVA), the National Voter Registration Act (NVRA), the National Voting Rights Act, and the Voting Accessibility for the Elderly and Handicapped Act.

Voting resources:

Title II in a Nutshell

Title II covers many locations, activities, services, and programs that play an important role in community and civic life in the United States. We’ve touched on some of those areas in this article. Other areas of note include public transportation (like city trains or buses), community operated health clinics and hospitals, and emergency shelters.

[ Read: The ADA and Transportation Providers ]

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