Child care centers and children with special needs: Rights under the Americans with disabilities act and section 504 of the rehabilitation act

Journal of Law and Education, Jul 2002 by Shipley, Tracy Elizabeth

ABSTRACT

Most child care programs, preschools, and day care centers are public accommodations and cannot discriminate against children on the basis of disability. However, it is not always clear what constitutes a disability or how to make a reasonable accommodation for a child with a disability. Many cases in this area are settled without extensive litigation, benefitting both children who might suffer harm as a result of lengthy litigation and child care centers attempting to curb rising childcare costs. This article summarizes the current law in this area, including available settlement information and Department of Justice policies.

I. INTRODUCTION

In the United States prior to the 1960s, a trend existed which segregated individuals with disabilities from the rest of society. In the 1960s, a change in the philosophy of the nation began to occur that reflected an idea that all individuals should be able to realize their potential and should not be segregated or separated because of their differences. As we turned away from separation in a racial context, we began to look at other groups we segregated from the mainstream of society and began to attempt to integrate them as well. The Rehabilitation Act was passed in 1973 and was the first federal statute providing for nondiscrimination on the basis of disability. It provided that the federal government, federal contractors, and recipients of federal financial assistance could not discriminate on the basis of disability. In 1975, the Education for All Handicapped Children Act was passed by Congress (now called the Individuals with Disabilities Education Act or IDEA1). This act reflected court decisions about equal protection and due process when educating children with disabilities in the public school system and addressed questions of procedural safeguards and funding in that context. In 1990, the Americans with Disabilities Act (ADA) was passed, providing much more comprehensive coverage for individuals with disabilities.2 The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation and telecommunications.3 The ADA incorporated many of the areas covered under the Rehabilitation Act.

Most actions against child care centers or private schools can be brought under Title III of the ADA, which covers public accommodations. Title III states that:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.4

By statutory definition, disability means "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual, a record of such impairment, or being regarded as having such an impairment."7 A child with special needs may be determined to have a disability and be covered under the ADA by any one of these three prongs. The only way a child who has a disability can be excluded from programs at a child care center is if he or she poses a direct threat to the health and safety of others or requires a fundamental alteration of the program. Unless a fundamental alteration is necessary, centers must make reasonable modifications to their policies and practices in order to integrate children with disabilities. Children cannot be excluded because a center lacks auxiliary aids (such as an interpreter, reader, or assistive device8) necessary for communication, unless providing them would constitute an undue burden or fundamental alteration. Centers must also make their facilities accessible to persons with disabilities.9

II. CHILD CARE CENTERS AND HIV

The first action brought by the DOJ regarding the right to child care under Title III of the ADA was filed against three Beloit, Wisconsin child care centers for refusing to admit an HIV-positive child.20 The suit was filed in the United States District Court for the Western District of Wisconsin against Happy Time Day Daycare Center, Kiddie Ranch Day Care and Learning Center, Inc., and ABC Play House Child Care, Inc.21 The original complaint, filed in June of 1997, sought declarative and injunctive relief in the form of an order to comply with Title III and stop any discriminatory practices. It also sought civil penalties and compensatory damages for the child, L.W., and his guardian. The complaint alleged that L.W.'s guardian had tried to place L.W. in each of the centers in 1996, and that after she volunteered information about his HIV-positive status, he was denied admission to each of the centers.22 Each child care center had openings for L.W. that were either filled once it learned of L.W.'s HIV-positive status or, in one case, because of staff reactions that indicated the center might have staffing problems if it accepted him.23 United States Attorney Peggy A. Lautenschlager issued a strong statement on behalf of the DOJ regarding the lawsuit. She said: