An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

3. S EPARATE B ENEFIT /I NTEGRATED S ETTING A primary goal of the ADA is the equal participation of individuals with disabilities in the “mainstream” of American society. The major principles of mainstreaming include the following:  Individuals with disabilities must be integrated to the maximum extent appropriate.

 Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.  Individuals with disabilities may not be excluded from the regular program, or required to accept special services or benefits. 1613

a. Separate Programs A school may offer separate or special programs necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Any separate program must, however, be specifically designed to meet the needs of the students with disabilities for whom they are provided. 1614 For example, the school may sponsor a separate basketball league for students who use wheelchairs. b. Right to Participate In T HE R EGULAR P ROGRAM Even if a school offers a separate or special program for students with disabilities, the school may not deny a student with a disability from participating in its regular program, unless some other limitation on the obligation to provide services applies. (For example, the student’s participation poses a direct threat to the health or safety of others.) Individuals with disabilities are entitled to participate in regular programs, even if the school reasonably believes they cannot benefit from the regular program. Individuals with disabilities may not be required to accept special “benefits” if they choose not to do so. 1615 Acknowledging the right of students with disabilities to participate in regular programs, the U.S. Department of Justice (“DOJ”) entered into an agreement with Louisiana Tech University after investigating the university’s compliance with the ADA. 1616 The DOJ brought its case against the university under Title II of the ADA since it is a public university. However, Title III of the ADA similarly prohibits schools from excluding individuals with disabilities from its services or programs. The DOJ investigated a university professor’s use of MyOMLab, an online learning product. MyOMLab was available to students in this course 24-hours per day, provided tutorials for course subject matter, and was necessary for completing homework and course tests. The DOJ found that a blind student in the course was unable to access this online learning product and, after a month, withdrew from the course because he was so far behind in his coursework. The blind student was also enrolled in a second course with the same professor. In the second course, the professor distributed hard copy course materials that were inaccessible to the student, and delegated responsibility to another student to provide the materials to the blind student. The DOJ found that there was a several day delay from the professor’s distribution of materials to the class to when the student received an accessible version.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 362