OCR Letter: University of Massachusetts - Amherst

Dr. David Scott
Chancellor
University of Massachusetts-Amherst
375 Whitmore Administration Building
Amherst, Massachusetts 01003
Complaint No. 01-93-2011

On December 3, 1992, this complaint was filed against the University of Massachusetts at Amherst (University) with the Office for Civil Rights (OCR). The Complainant alleged that the University does not provide adequate parking spaces designated for persons with disabilities at the Admissions Center, the Robson Memorial Visitor Center, and at all other parking areas on campus. The Complainant also alleged that parking spaces and the cafeteria at the Newman Center (Center) are not accessible to persons with disabilities. The Center, although not owned or operated by the University, was alleged to receive significant Federal financial assistance from the U.S. Department of Education (Department) through the University.

OCR investigates complaints alleging discrimination against persons with disabilities pursuant to its enforcement responsibilities under Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, and its implementing regulation found at 34 C.F.R. Part 104 (Section 504), which prohibit discrimination in any program or activity receiving or benefiting from Federal financial assistance extended by the Department. The University receives such Federal funding, and is, therefore, subject to the provisions of Section 504.

OCR also investigates these types of complaints under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12134, and its implementing regulation found at 28 C.F.R. Part 35 (ADA), which prohibit discrimination on the basis of disability by public postsecondary education systems. As a public postsecondary education system, the University is also subject to the provisions of the ADA.
OCR sent data requests to the University on March 12, 1993 and May 13, 1993. The University responded on April 1, 1993, May 10 and 18, and June 14, 1993. In addition, OCR conducted an on-site investigation on June 14, 1993 of selected University parking lots.

OCR found that the University failed to provide adequate accessible parking to persons with disabilities in violation of Section 504 and the ADA. OCR also found that the University provided significant financial assistance to the Center and that the Center failed to provide adequate parking and an accessible cafeteria. The reasons for OCR's findings are presented below.

Legal Standards

Under the Section 504 regulation, a recipient is responsible not only for prohibiting discrimination in its own programs and activities, but also for not participating in contracts or other arrangements which have the result of subjecting individuals to discrimination on the basis of disability. The regulation at 34 C.F.R. § 104.4(b)(4) states:

A recipient may not, directly or through contractual or other arrangement, utilize criteria or methods of administration (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to individuals with disabilities, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same state.

The ADA similarly requires, at 28 C.F.R. § 35.130(b)(3):
A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity program with respect to individuals with disabilities; or (iii) that perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same state.

As a result, a recipient violates Section 504, and a public entity violates the ADA, if it renders assistance to or enters into arrangements with a non-recipient or a private entity that discriminates against individuals with disabilities. Since the Center is not a recipient, OCR would normally review the accessibility of Federally funded programs only, except that the scope of the complaint was limited to parking and the cafeteria. OCR considers these services essential to the accessibility of all programs at the Center, including the Federally supported programs. In the current case, in order to determine if the University violated the regulations cited above, OCR considered whether the programs and activities at the Center are accessible to individuals with disabilities.

Section 504 provides a dual legal standard to assess program accessibility. Buildings constructed prior to June 3, 1977, the effective date of the regulation, are regarded as "existing facilities" and must comply with 34 C.F.R. § 104.22. Facilities constructed after June 3, 1977, and parts of existing facilities altered after that date, are deemed "new construction" and must comply with 34 C.F.R. § 104.23.

Section 104.22 requires for "existing facilities" that a recipient's programs or activities in an existing facility, when viewed in their entirety, must be accessible to persons with disabilities. The recipient is not required to make each of its existing facilities or every part of an existing facility accessible to persons with disabilities, if each program or activity as a whole is accessible.

Section 104.23 requires for "new construction" that the facility itself, or part of the facility that has been altered or renovated after June 3, 1977, must be accessible to persons with disabilities.

A checklist based on the Uniform Federal Accessibility Standards (UFAS) is used as a guide in determining the physical accessibility of programs and activities in existing facilities. The applicable regulations state that where a recipient operates a program or activity in an existing facility, the program or activity, when viewed in its entirety, must be readily accessible to and usable by persons with disabilities. A recipient may comply with this requirement through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the regulatory requirements for new construction, or any other methods that result in making its programs or activities accessible to persons with disabilities. Because OCR uses UFAS only as a guide in determining compliance for existing facilities, departures from the particular requirements of UFAS by the use of other methods are permitted when it can be demonstrated that the recipient's programs and activities are accessible to persons with disabilities.

Title II of the ADA has adopted virtually identical requirements to the Section 504 regulation with respect to the physical accessibility of programs, activities, and facilities administered by state and local government agencies. Under the ADA, however, the date used to distinguish "existing facilities" from "new construction" is January 26, 1992.

Regarding program accessibility, the ADA regulation provides a dual legal standard similar to the Section 504 standard. Buildings constructed prior to January 26, 1992, the effective date of the Title II regulation, are regarded as existing facilities and must comply with 28 C.F.R. § 35.150. Facilities constructed after January 26, 1992, and parts of existing facilities altered after that date, are deemed new construction and must comply with 28 C.F.R. § 35.151. Section 35.150 requires that a recipient's programs or activities in an existing facility, when viewed in their entirety, be accessible to persons with disabilities. Section 35.151 requires for new construction that the facility itself, or part of the facility that has been altered or renovated after January 26, 1992, be readily accessible to and usable by persons with disabilities.

To meet the "readily accessible" requirement for new construction under 28 C.F.R. § 35.151, a public entity may show compliance through conformance with either UFAS or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG). OCR uses UFAS and ADAAG to determine whether new construction complies with the regulations at 28 C.F.R. § 35.151. Departures from the particular requirements of UFAS or ADAAG for new construction by the use of other methods are permitted when it is clearly evident that equivalent access to the facility or part of the facility is provided.

For construction initiated prior to January 26, 1992, OCR uses ADAAG, UFAS, ANSI or whatever standard was in effect at the time of the construction, to determine whether programs and activities in an existing facility, when viewed in their entirety, are accessible to disabled persons. Departures from the requirements of ADAAG, UFAS, ANSI or other standards are permissible as long as access to programs and activities is provided.

Since OCR is an agency that has Section 504 jurisdiction, Title II of the ADA requires us to process ADA complaint investigations under our procedures for enforcing Section 504. Although we use Section 504 procedures, our findings will reflect determinations of compliance with both Section 504 and the ADA.

Issue One: Newman Center

OCR investigated the following issue:
Whether the University, directly or through contractual or other arrangements, utilized criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability [34 C.F.R. § 104.4(b)(4), and 28 C.F.R. § 35.130(b)(3)].

Findings of Facts

The Director of the Center (Director) described the Center as an ecumenical center serving all members of the University's community, providing counseling, educational activities, and fellowship as well as serving as a Catholic cultural center. The single largest function area of the Center is its cafeteria which has a capacity of 400, serves 3,000 persons daily and is open everyday of the year, according to the Director.

The University informed OCR that at the time the complaint was filed, the University had placed two federally assisted work study students to perform administrative duties in support of programs and activities at the Center. OCR found that the Center provided the University's School of Management with classroom and meeting space on request and the University lists the Center's Director and two others as University Chaplains in its directory, providing them with University identification cards giving them access to University facilities. OCR has jurisdiction to investigate alleged accessibility problems at the Center since the Center benefitted from Federal financial assistance received by the University.

OCR applied, as guidelines, the regulatory standards for program access for existing facilities found at 34 C.F.R. § 104.22, and 28 C.F.R. § 35.150(a) and (b), based on the Center's construction date, to determine whether the Center discriminated against individuals with disabilities by denying them access to its essential programs.

OCR found that the Center is located in a three-story building which was constructed over thirty years ago. The Center is on privately owned land and, although a private entity, received benefits from the University establishing OCR's jurisdiction.

In a telephone inquiry with the Center's Director and as confirmed by the on-site inspection, OCR determined that the Center's cafeteria is located on a mezzanine level with three steps to a level entrance. Also, the designated accessible parking is not located within a reasonable distance to the nearest level entrance and the designated accessible parking does not have an access aisle which means that persons disembarking must traverse a vehicular route to get to the entrance.

Conclusion

OCR concluded that the University is in violation of Section 504 at 34 C.F.R. § 104.4(b)(4) and the ADA at 28 C.F.R. § 35.130(b)(3) because it participates in contractual or other arrangements that subject individuals with disabilities to discrimination on the basis of disability by denying them access to programs and activities at the Center.

Issue Two: University Parking

OCR investigated the following issue:

Whether the University discriminates against persons with disabilities by failing to ensure that its programs and activities, when viewed in their entirety, are accessible to and usable by persons with disabilities. [34 C.F.R. §§ 104.22 and 104.23 and 28 C.F.R. § 35.150]

Findings of Fact

OCR found that some of the University's parking areas were built prior to June 3, 1977, although there have been some renovations since 1977. Thus, the Section 504 requirements for existing facilities found at 34 C.F.R. § 104.22 apply to some of the parking areas, and the requirements for new construction at 34 C.F.R. § 104.23 apply only to the portions of the facilities that have been modified since 1977. OCR found that no renovations to the University's parking areas were completed after January 26, 1992, but some construction was in progress. Thus, OCR applied the ADA standards at 28 C.F.R. § 35.150 for these facilities.

The University provided OCR with a list of 42 parking areas, with 152 designated accessible spaces out of a grand total of 11,178 spaces on campus. OCR randomly selected from that list eight parking areas for inspection. OCR also inspected the three other parking areas identified by the Complainant. OCR inspected lots 22, 24, 27, 49, 64, 71, 74, E Perimeter, North Village, Robson Memorial Visitor Center, Admissions Center (52), and the Center. The Center had an additional 46 parking spaces. These 11 parking areas had 53 designated accessible spaces, out of 4,624 spaces in those areas, according to the University.

Lot Designator Designated Accessible Spaces Total Spaces

22 (also "D" or soccer lot) 0 802
24 Tilson Farm 0 65
27 Physical plant 0 7
49 Orchard Hill 9 642
52 Admissions Center 3 24
64 Dickenson Central Campus 20 281
71 Administration 12 229
E Perimeter 0 2,207
North Village 4 309
Robson Memorial Visitor Center 2 12
Newman Center (Center) 3 46
______
______
53 4,624

OCR found one or more of the following deficiencies in each of the parking areas inspected: no post-mounted "accessible parking" signs; spaces too narrow; lack of access aisles; access aisles too narrow; designated accessible spaces were not within a reasonable distance near the entrance; the spaces were not located on an accessible route because persons with disabilities were required to cross hazardous unmarked vehicle lanes; designated space lane markers were not painted or were worn out; access route to be used required traversing a loading area used by large trucks; van access was not designated; and passenger loading zones for accessible shuttle vans not designated or marked.

Although some parking areas did not have any designated accessible parking e.g., "E" lots on the perimeter of the campus, this may not be a violation under certain conditions. The "E" lots are remote parking areas, whose permits are the least expensive and may be used for extended periods by some students or cost conscious commuters, but are far from services and entrances. The "E" lots are unimproved with gravel surfaces. The University constructed the "E" lots in 1967. The University told OCR that it provides designated accessible parking in other lots closer to services and entrances and that persons with disabilities do not need to pay any parking fee to use such spaces. There is no time limit for their use according to University staff. As long as the designated parking in other lots provides greater access at the same or less cost than is available in the "E" lots, then the absence of designated accessible parking in the "E" lots would not be a violation. Similarly, lot 27, another gravel lot, was located in a nonpublic area for use by physical plant staff and designated accessible parking was available in other lots nearby, closer to services used by the public. Thus, under those circumstances lot 27 may not need to have designated accessible spaces. However, OCR was not given any reason by the University why lots 22 and 24 did not have designated accessible parking.

Conclusion

Although the University provided some designated parking for persons with disabilities, the parking provided for persons with disabilities does not meet the accessibility provisions of UFAS or other accessibility standards. The lack of accessible parking has the effect of denying persons with disabilities access to the University's programs and activities in violation of Section 504 and the ADA and their implementing regulations at 34 C.F.R. § 104.22; § 104.23 and 28 C.F.R. § 35.150.

On June 14, 1993, OCR initiated negotiations with the University. As a result of these negotiations, the University signed a Corrective Action Plan (Agreement) (copy enclosed) and agreed to take corrective actions to remedy the violations. Based on the University's written assurance that the remedial actions set forth in the Agreement will be completed by the dates specified in the Agreement, OCR considers the University to be currently fulfilling its obligations under Section 504 and the ADA.

Therefore, this complaint is closed effective the date of this letter. Continued compliance is contingent upon the University carrying out the stipulated corrective actions to which it has agreed. Failure to perform the corrective actions may result in a finding of noncompliance and enforcement action. In accordance with the ADA, enforcement action may include referral of this matter to the United States Department of Justice.

As is our standard practice, OCR will monitor the University's progress in implementing the agreed upon corrective actions. In order to monitor the implementation of the Agreement, OCR requires that the University submit an initial report by October 15, 1993, which will include a description of its attempts to have the Center comply with the Agreement. The report should describe actions to be taken by the Center to render the parking and cafeteria programs and activities accessible to individuals with disabilities.

If a determination is made, in accordance with the Agreement, that the Center will not correct the problems identified, the report should describe the University actions, with supporting documentation, to ensure that the Center does not benefit from Federal financial assistance to the University.
The findings of this letter address only the issues discussed herein and should not be interpreted as a determination of the University's compliance or noncompliance with Section 504 or the ADA in any other respect.

Under the Freedom of Information Act, 5 U.S.C. Section 552, it may be necessary to release this document and related correspondence and records upon request. In the event that OCR receives such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.
If you have any questions, do not hesitate to contact me at 617/223-9667 or J. Michael Burns, Deputy Regional Director at 617/223-4146.

Thomas J. Hibino
Regional Director