Question: Our physician recently told us that our 2 year old child is “on the autism spectrum”. What federal and Michigan laws do we need to be aware of as we advocate for our child?
Answer provided by Autism Alliance of Michigan’s Legal Consultant John Brower
There are both federal and state laws (created by the Michigan legislature) that exist to insure that children with disabilities are not subject to disability based discrimination and receive appropriate educational opportunities.
The following laws (and implementing regulations) are applicable to children with autism that meet each law’s qualifying criteria. In a sequence, a brief overview of each of the following laws is provided
- The Individuals with Disabilities Education Act (IDEA) – 20 U.S.C. 1400 et seq. and the implementing regulations at 34 C.F.R. §300 et seq. and the Michigan School Code – MCL § 380.1701 et seq. with its implementing regulations contained in the Michigan Administrative Rules for Special Education (MARSE) at R 340.1701 et seq.
- Section 504 (“§504”) of the Rehabilitation Act of 1973 – 29 U.S.C §794 and the implementing regulations at 34 C.F.R. §104.
- The Americans with Disabilities Act (ADA) – Subchapter II – Part A at 42 U.S.C. §12132 and § 12133 including the ADA Amendments Act of 2008 and the ADAAA regulations of 2010.
- The Michigan Elliot-Larsen Civil Rights Act – MCL §37.2101 et seq. Particularly Part 4.
- The Michigan Persons with Disabilities Civil Rights Act – MCL §37.1101. Particularly Article 4.
- PART 3 – The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) is the companion federal legislation to §504 of the Rehabilitation Act. It is a civil rights act with various sections (primarily Section II and III) applicable to public and private schools. The ADA works in conjunction with §504 of the Rehabilitation Act and other state and federal laws affecting the education of students with disabilities. In general, when multiple laws are applicable, whichever ￼￼law or portion of a law provides the greatest protection for the individual with a disability will prevail.
The focus of the ADA is difference from the “services” provided under the IDEA and the anti-discrimination provisions of §504 as its focus is on “access”. At the same time the qualifications for protection under the ADA is the same as for §504: (1) A physical or mental impairment which substantially limits one or more major life activities of the individual, etc.
NOTE: There are instances where a student may meet the eligibility requirements of §504 or the ADA but found not to be eligible for IDEA special education services. However, virtually all children who meet IDEA eligibility criteria will also be protected by the ADA and §504. Such a child would have rights and protections under all three laws.
As with §504, Title II of the ADA extends protection from retaliation to the disabled student’s parents when they advocate for their disabled child. The ADA also provides disabled adults with access to public and private facilities. That includes such school programs and activities as parent teacher conferences, school plays, athletic events, graduation ceremonies, etc.
Access – Public Schools
Title II of the Act covers public schools as they are defined as “public entities.” Public entities must provide (1) program access (2) in an integrated setting unless separate programs are necessary to ensure equal benefits or services. Program access under Title II means that school districts are required to operate their programs so that their facilities are accessible to and usable by individuals with disabilities. This applies to all existing facilities.
This requirement has required public schools to make improvements to an existing building such as installing ramps or elevators. However, structural accessibility is not required if there are alternative means of achieving program access. That can be achieved by relocating a class or activity to a different room in the building, etc.
The need for access can often be addressed by the use of auxiliary aids and services such as interpreters or sound amplification systems must be provided if necessary for effective communication at school programs, conferences and other activities.
However, what is required to insure access is not unlimited. Public school districts are not required to take any action that would result in a fundamental alteration of the nature of the program or activity or in undue financial and administrative burdens. The public school and the parent may have a differing view of what is a “fundamental alteration” of a program or what constitutes an “undue burden”. Or the parent (or advocate) may disagree with the actions the public school proposes to insure that the individuals with disabilities receive the same benefits and services offered to others without disabilities.
Access – Private Schools
Title III of the ADA prohibits discrimination in all “public accommodations”. 42 U. S. C. § 12182 (a). That includes private non-religious schools. Unlike §504, there is no requirement that the school or accommodation receive federal funds. Note: Private school directly operated by religious institutions are exempt from the ADA but likely are subject to the Michigan equal access and anti-discrimination laws referenced above and will be discussed in future postings.
Under Title III, the non-religious private school to insure access must make reasonable modifications to its policies, practices and procedures that deny access to individuals with disabilities. As with Title II, a private non-religious school cannot be required to make a fundamental alteration in the nature of the program. However, unless it presents a fundamental alteration, it can be required to furnish auxiliary aids such as interpreters, note takers or readers when such support is necessary to ensure effective communication.
If a disagreement cannot be resolved, parents and advocates can file a complaint with the federal Department of Justice alleging disability discrimination against a State or local government unit (including public schools and non-religious private schools) or a public accommodation (including, for example, a restaurant, doctor’s office, retail store, hotel, etc.) online, by mail, or fax.
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV Washington, D.C. 20530