THE UNITED STATES OF AMERICA
UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT
DJ DJ #202-13-198
A. DEFINITIONS AND BACKGROUND
1. This matter is based upon a compliance review of physical accessibility for individuals with disabilities at Colorado College (the “College”) under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 - 12189 (the “ADA”), and the Department of Justice’s implementing regulation, 28 C.F.R. Part 36, including the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (the “Standards”). The United States’ compliance review in this matter was not prompted by a complaint against the College.
2. Title III of the ADA requires, among other things, that the College remove barriers to access in existing facilities where it is readily achievable to do so, and that it construct or alter any buildings or facilities in such a manner that those buildings or facilities meet the requirements of Title III of the ADA, including the Standards. In addition, Title III of the ADA requires that the College ensure that no individual with a disability is discriminated against on the basis of a disability in the full and equal enjoyment of the College’s services and facilities. 42 U.S.C. §§ 12182-12183.
a. Colorado College’s campus consists of sixty-five buildings, the majority of which were constructed prior to the enactment of the ADA, and many of which the College views as having historic significance. Eight campus buildings were constructed after the passage of the ADA. The College contends that it has taken various steps over the last fifteen years to complete accessibility improvements at its campus. The College is located in a mountainous region and has elevation changes on its campus.
b. The College states that, as part of its efforts to comply with Title III of the ADA,
(i) the College established an ADA Advisory Board in 1999 to provide input and advice on accessibility issues and to provide recommendations on barrier removal projects;
(ii) from 1999 to 2004, the Office of the Dean, the Office of Student Life, and appropriate College officials, including an ADA Coordinator, implemented policies and services for individuals with disabilities and monitored the College’s compliance with the ADA; (iii) in 2004, the College appointed a Director of Disability Services and ADA Coordinator; and (iv) its Director of Facilities is responsible for the review of all plans for new construction and alterations for compliance with Title III, including the Standards.
4. The United States contends that its compliance review identified various aspects of the College’s campus that were not in compliance with the ADA and the regulation, including the provisions referenced in paragraph 2 above. The College denies that it has violated Title III of the ADA, or any other federal law prohibiting discrimination against individuals with disabilities. This Agreement is not an admission of any violation of the ADA or its regulations by the College or any of its current or former officers, employees or agents.
a. Examples of violations alleged by the United States include, but are not limited to: inaccessible doors (too narrow); inaccessible (round) door knobs; inadequate wheelchair maneuvering space at doors; inaccessible (high) door thresholds; room identification signs not accessible to people with vision impairments; narrow (less than 36" wide) routes within buildings; inadequate maneuvering space at library stacks; abrupt level changes along required routes; steep (greater than 8.3%) ramps and curb ramps; inaccessible cross slopes; inaccessible ramp and stair handrails; inaccessible dormitory rooms and toilet rooms; inaccessible showers; toilet seats that are too high; toilets not centered at 18" from the side wall; inadequate knee height at lavatory aprons; inadequate turning space in toilet rooms; drinking fountains with spout too high; lack of accessible visual fire alarms; inadequate head clearance along circulation routes; protruding objects along circulation routes; inaccessible seating in assembly spaces; inaccessible routes to performing art stages; inaccessible dining counters and tables; and an absence or inadequate number of assistive listening devices in assembly areas.
b. In January 2006 the United States provided copies of reports and summary reports to the College with respect to substantially all non-residential facilities and pedestrian routes on the College campus with the exception of the College radio station, which the College stated would be moved to another location shortly. These reports document alleged access issues discovered during site visits conducted by the United States in 2005. With respect to student residential facilities, the United States only looked at a representative sampling of rooms and amenities in a limited number of student housing facilities. Colorado College contends that at the time of this Agreement, approximately 6% of the housing units in its residential facilities are compliant with the ADA.
6. The parties to this Settlement Agreement are the United States and Colorado College. In order to avoid the burden and expense of further investigation and possible litigation, the parties hereby agree to the following:
7. The College, located in Colorado Springs, Colorado, is a place of education operated by a private entity, and its operations affect commerce. Accordingly, it is a place of public accommodation covered by Title III of the ADA. 42 U.S.C. § 12181 (7)(J).
8. The ADA requires that the Department of Justice conduct periodic compliance reviews of public accommodations. 42 U.S.C. § 12188 (b)(1)(A). The Department of Justice is also authorized to commence a civil action in a United States district court if it is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance, and to seek injunctive relief, monetary damages, and civil penalties. 42 U.S.C. §§ 12188 (a)(2) and 12188 (b). In consideration of the terms of this Agreement and the College’s promises contained in Section C of this Agreement, the Department of Justice agrees to refrain from undertaking further investigation into or from filing civil suit in this matter at this time, except as provided in Section D below.
9. The subjects of this Agreement are the College’s obligations to:
a. Modify policies, practices, and procedures in order to afford access to services and facilities to individuals with disabilities, 42 U.S.C. §§ 12182 (a) and 12182 (b)(2)(A)(ii);
b. Remove architectural barriers in existing facilities where such removal is readily achievable, 42 U.S.C. § 12182 (b)(2)(A)(iv);
c. Undertake alterations in such a manner that they are readily accessible to and usable by persons with disabilities to the maximum extent feasible, 42 U.S.C. § 12183 (a);
d. Ensure that all of its newly constructed buildings are readily accessible to and usable by individuals with disabilities as required by the ADA regulation including the Standards, 42 U.S.C. § 12183 (a); and 28 C.F.R. Pt. 36 and App. A; and
e. Ensure that no individual with a disability is discriminated against on the basis of disability in the full and equal enjoyment of the College’s services and facilities. 42 U.S.C. §§ 12182 - 12183; and 28 C.F.R. Pt. 36 and App. A.
C. REMEDIAL ACTION
a. The College shall ensure that its facilities that are designed and constructed for first occupancy after September 1, 2006 (“future construction”), are designed and constructed in compliance with the new construction provisions of the ADA and its implementing regulation, 28 C.F.R. Pt. 36 and App. A.
b. The College shall ensure that its facilities that were constructed for first occupancy after January 26, 1993, but before September 1, 2006 (“new construction”), comply with the new construction provisions of the ADA and its implementing regulation, 28 C.F.R. Pt. 36 and App. A, unless otherwise specifically agreed to in the Physical Access Plan, by no later than December 31, 2009.
11. The College shall ensure that any alterations made in the future to an existing facility are, to the maximum extent feasible, readily accessible to, and usable by, individuals with disabilities. 42 U.S.C. § 12183 (a)(2), 28 C.F.R. §§ 36.402 - 36.405. The College shall ensure that any specific alterations required by this Agreement are, to the maximum extent feasible, readily accessible to, and usable by, individuals with disabilities, in compliance with 42 U.S.C. § 12183 (a)(2), 28 C.F.R. §§ 36.402 - 36.405, except where, on a case-by-case basis, the parties may agree to different requirements in the Physical Access Plan for purposes of this Agreement.
12. The College shall continue its ongoing efforts to ensure full access to services to individuals with disabilities and to remove barriers to access throughout its campus. 42 U.S.C. §§ 12182(b)(2)(A)(ii) and (iv). In addition, the College shall continue to implement policies and procedures that ensure that programs, services, and amenities that require advanced notice or registration are located in or relocated to an accessible facility in the event that a person with a disability who needs a level of accessibility that is not otherwise provided, registers or gives notice consistent with any advance registration or notification requirements.
13. In order for the College to ensure that individuals with disabilities are afforded access to its services and its facilities, the College shall, as further described in paragraphs 14 through 27 below, modify its policies and procedures, and take steps to make its campus more accessible by, among other things, implementing a comprehensive plan for addressing those remaining barriers to access to individuals with disabilities (the “Physical Access Plan” or the “Plan”). The College shall complete all alterations required by the Plan by or before September 1, 2012.
14. The College has designated an ADA Coordinator/Director of Disability Services, who, with assistance from the College’s ADA Working Group, shall have the primary authority and responsibility for ensuring that all aspects of the College campus meet the terms of this Agreement and the requirements of the ADA. The College’s ADA Working Group consists of representatives from the Facilities Department, Residential Life Department, Faculty, the Campus Architect, and the Office of Legal Counsel. The ADA Coordinator/Director of Disability Services along with the ADA Working Group shall participate in managing accessibility modification projects, including plans for ongoing barrier removal at the College. The position of ADA Coordinator shall be maintained for the duration of this Agreement. The ADA Coordinator, the Director of Facilities, and the Campus Architect shall undergo additional training on the ADA’s accessibility requirements by no later than January 1, 2007. That training shall be of sufficient quality and duration to enable each of them to achieve a thorough understanding of the requirements of Title III of the ADA, including the regulation and the Standards.
15. In order to prepare the Physical Access Plan, the College shall:
a. by September 1, 2006, review in detail the United States’ accessibility reports, which were previously provided to the College (as described in paragraph 5 above); and
b. by February 1, 2007, survey and evaluate:
(i) all current residential housing units that the College believes are compliant with the ADA (including any amenity or service provided to residents of the facilities in which those units are located);
(ii) an additional number of residential housing facilities consisting of no fewer than one-third of the College’s remaining housing facilities that the College believes may be capable of being modified to have accessible housing units and amenities; and
(iii) relevant portions of additional housing facilities which the College believes may be capable of being modified to have an accessible entrance, a first-floor common area (if one is provided), and a toilet room (if one is provided) which may be used by a visitor with a disability.
c. By no later than March 1, 2007, the College shall provide the United States with copies of reports documenting the surveys produced pursuant to subparagraph 15(b) above. Based upon these reports, the College shall, in its proposed Physical Access Plan ensure that (i) no fewer than 3% of its total units comply with the ADA, including the Standards, and that these units are dispersed throughout the College’s housing stock to the greatest extent possible, and (ii) that additional housing facilities are made accessible to a visitor with a disability.
d. In limited circumstances, with respect to unique residential programs offered by the College, such as foreign language houses, which are located in small, existing, older facilities, the College may choose to use alternatives to barrier removal in order to afford students with disabilities equal access to all aspects of a residential program, including amenities. For example, where the College provides an accessible housing unit but is unable to move laundry facilities from an inaccessible basement facility, it may choose to offer free laundry service to a student whose mobility impairment makes him/her unable to use a basement laundry room which is only reachable by stairs.
16. By no later than April 1, 2007, the College with assistance from its ADA Coordinator/Director of Disability Services and ADA Working Group, shall develop a comprehensive Physical Access Plan that addresses the accessibility issues identified in the United States’ surveys and in the surveys conducted by the College pursuant to the provisions of paragraph 15 of this Agreement. This Plan shall include a scheme for barrier removal, and shall contain statements and general policies evidencing the College’s commitment to ensure that accessible features are maintained in a manner that affords equal access to individuals with disabilities.
17. The College’s Physical Access Plan shall include specific remedial actions and timetables to ensure, among other things, that the following items are completed by deadlines which are set forth in the Plan, but which shall be no later than September 1, 2012:
a. All facilities, or parts of facilities, used for programs, services, and amenities open to the campus community or to the public and not requiring advanced notice or registration (open-access facilities) shall have the following accessible features, meeting the technical provisions of the Standards (28 C.F.R. Part 36, App. A. §§ 4.3 - 4.35, and 5-9) unless otherwise specifically agreed to by the parties in the Physical Access Plan:
(i) Accessible parking (where parking facilities are otherwise provided by the College);
(ii) Accessible approaches from adjacent parking areas, walkways, and public transportation drop-off points to the extent within the College’s control and not in the public right-of-way.
(iii) An accessible entrance to the building, and into those rooms or spaces open to the public where such programs, services, or amenities are provided;
(iv) An accessible water fountain (if a water fountain is provided) on an accessible level, complying with § 4.1.3(10);
(v) Accessible men’s and women’s toilet rooms including a standard stall consistent with § 4.23.4, or one unisex accessible toilet room consistent with § 4.1.6 (e) on an accessible level;
(vi) An accessible public telephone (if public telephones are offered) on an accessible level;
(vii) Signage (identifying permanent rooms and spaces) with raised and Braille characters, as well as directional signage, as required by the Standards;
(viii) If any program, service, or amenity offered is located above or below the accessible entry level, one accessible means of vertical access will be provided (an accessible elevator, ramp or lift);
(ix) Accessible seating in classrooms or auditoriums or other spaces that meets the appropriate ADA Standards; and
(x) One accessible route from the accessible entrance to each accessible space.
b. All programs, services, and amenities that require advance notice or registration shall be located in (or relocated to) an accessible building that meets the criteria of subparagraph 17(a), unless otherwise specifically agreed to by the parties in the Physical Access Plan, in the event that a person with a disability who needs a level of accessibility that is not otherwise provided registers or gives notice consistent with any advance notification or registration requirements;
c. At least one exterior route connecting those elements specified in 4.1.2(1)-(2) shall comply to the maximum extent feasible with sections 4.1.2(1) through (5) of the Standards, 28 C.F.R. Part 36, App. A;
d. A minimum of three percent of units in its housing facilities (and the bathrooms serving those units) shall be accessible to individuals with disabilities, with those units to be dispersed throughout the College’s housing stock to the greatest extent possible in a manner to be negotiated by the parties in the Physical Access Plan; and
e. A reasonable number of housing facilities, to be negotiated by the parties in the Physical Access Plan, in addition to those modified pursuant to subparagraph 17(d), shall have an accessible entrance, a first-floor common area (if one is provided), and a toilet room (if one is provided) which may be used by a visitor with a disability.
18. By no later than April 1, 2007, the College shall make its draft Plan available to students, faculty, and employees of the College (via Intranet, hard copy, or any other appropriate means). The College shall actively seek comments and suggestions to improve its proposed Physical Access Plan, which shall be made available for comment for thirty (30) days. The College shall accept written comments in any form (including but not limited to e-mails), maintain copies of all comments, and, upon request after the close of the comment period, provide copies to the United States within 30 days of such request.
19. By no later than April 1, 2007, the College shall update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans (“emergency plans”) for individuals with disabilities. The College shall make these emergency plans available on the College’s “intranet,” as well as in printed form, and shall update them as necessary. The College shall seek comment from the College community on its emergency plans (in accordance with the procedure set forth in paragraph 18) and make changes based upon those comments by June 1, 2007. The emergency plans shall ensure that persons with disabilities are provided a full and equal opportunity to benefit from these services in the most integrated setting appropriate to the needs of the individuals.
20. By no later than June 1, 2007, after it has considered the comments of the College community, the College shall submit its proposed Physical Access Plan and proposed final emergency plans to the United States in both hard copy and on disk.
21. By no later than July 15, 2007, the United States shall provide the College with a response to its proposed Physical Access Plan and proposed final emergency plans, including any deficiencies to be addressed.
a. By no later than September 1, 2007, the College shall respond in writing to any comments provided by the United States regarding the Physical Access Plan and final emergency plans and shall revise its plans accordingly. The United States shall promptly review the College’s response. The parties shall negotiate in good faith any disputes regarding the Physical Access Plan and emergency plans. The United States shall not unreasonably withhold its approval of these plans.
b. The College shall implement the final emergency plans within 30 days of approval by the United States unless additional time is required based on the training or physical modifications necessary under the emergency plans, or to resolve any disputes between the parties regarding these plans.
23. By no later than November 15, 2007, if the United States and the College have been unable to reach an agreement with respect to the content of the Physical Access Plan and/or final emergency plans:
a. The College shall promptly implement those aspects of the Physical Access Plan and/or final emergency plans to which the parties have agreed;
b. The parties shall resort to mediation with respect to all remaining issues, and the parties shall share equally the cost of mediation; and
c. Any such mediation shall be conducted by a mediator or mediation organization mutually acceptable to both parties.
24. By February 1, 2008, if the parties have been unable to resolve all remaining issues through mediation and negotiation, then the provisions of paragraph 32 shall apply as if the United States had provided the 30 days notice required by that paragraph.
25. By no later than December 15, 2006, the College shall display on its website information to assist individuals with disabilities to identify, among other things, accessible routes through the College campus, accessible parking areas, accessible entrances to buildings, and accessible spaces within buildings. The College’s website shall also be updated regularly to reflect newly added or renovated accessible features of the campus.
26. By no later than March 1, 2007, at facility entrances and toilet rooms, where not all facility entrances or toilet rooms at the facility are accessible, the College shall install the International Symbol of Accessibility and signage complying with the applicable requirements of section 4.1.2(7) of the Standards at the accessible facility entrances and toilet rooms, as well as directional signage complying with section 4.1.2(7) of the Standards, at the inaccessible facility entrances and toilet rooms indicating the location of the nearest accessible entrance or toilet.
27. By May 1, 2007, the College shall have assistive listening devices (ALD’s) available for at least 2% of the total number of seats in each lecture hall, meeting room, and other assembly areas covered by section 4.1.3 (19)(b) of the Standards, if they (1) accommodate at least 50 persons or have audio amplification systems and (2) have fixed seating. For other assembly areas, the College shall provide an assistive listening system or an adequate number of outlets or other necessary wiring for a portable assistive listening system in accordance with section 4.1.3(19)(b) of the Standards. The College shall have a procedure for ensuring that those who need ALD’s can obtain them at the time needed.
D. ENFORCEMENT AND REPORTING
28. At any time during the effective dates of this Agreement, the United States reserves the right to inspect, with reasonable notice to counsel, the College’s campus; to request access to records; and to request documentation of compliance with this Agreement.
29. Commencing in 2007, and during the effective dates of this Agreement, the College shall provide the United States with an annual report - due on or before October 15 of each year - that lists every project for new construction or alteration (as defined by the ADA or the regulation) that has commenced, or for which plans have been developed, during the preceding fiscal year, which runs from July 1 to June 30. In addition, the College shall maintain the written evaluations and reports required by this Agreement for the duration of this Agreement, and upon request, shall provide copies of any report(s) to the United States within 30 days of a request.
30. By no later than 60 days after the deadline in paragraph 10 the College shall provide the United States a detailed written report, including digital photographs where appropriate, that demonstrates compliance with the provisions of those paragraphs.
31. By no later than September 1, 2012, the College shall provide the United States with a detailed written report, including digital photographs, that demonstrates compliance with the Physical Access Plan. The report need not address items for which the College previously produced reports pursuant to paragraphs 29 and 30. That report shall also indicate any areas of non-compliance with the Physical Access Plan as well as the dates when those areas will become compliant with the Physical Access Plan.
32. If, based on the reports provided by the College pursuant to this Agreement or other information, the United States finds that the College has failed to comply with the Agreement, the United States agrees to notify the College in writing of the alleged noncompliance and attempt to seek a resolution of the matter with the College. If the parties are unable to reach a resolution within thirty days of the date of the United States’ written notification, the United States may seek enforcement of the terms of this Agreement in the United States District Court for the District of Colorado. In the event that the court determines that the College has failed to comply with any term in this Agreement, such failure to comply shall be treated as a violation of Title III of the ADA and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188 (b)(2)(C). Alternatively, should the parties be unable to reach a resolution within 30 days of the date of the United States’ written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation.
33. If during the implementation of the Plan, the College determines that, due to reasons beyond its control (e.g. contractor delay, severe weather delays, etc.), it cannot comply with certain, limited aspects of the Plan by the dates set forth in the Plan, the College may seek a reasonable extension of time to complete the work, and the United States will not unreasonably withhold its consent.
34. Nothing in this Agreement waives the right of the United States to bring a civil action to enforce this Agreement or any provision thereof.
35. This Agreement constitutes the entire agreement between the parties relating to the Department’s Title III compliance review referenced in paragraph 1 above, and Department of Justice Matter Number 202-13-198, and no other statement, promise, or agreement, either written or oral, made by any party or agents or any party that is not contained in this written Agreement, including its attachments, shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the College’s continuing responsibility to comply with all aspects of the ADA.
36. Failure by the United States to enforce this entire Agreement, or any provision thereof with regard to any deadline or any other provision herein, shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
37. If any term of this Settlement Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the Department of Justice and the College shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
38. This Agreement shall be binding on the College, its agents, its employees, and any successors or assigns. In the event that the College seeks to transfer or assign any facility owned by it as of the date of this Agreement, and the successor or assign intends to continue the same or similar use of the facility, as a condition of sale, the College shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
39. This Agreement is effective as of the date of the last signature below and expires on March 1, 2013.
The College shall ensure that these surveys are conducted by individuals who are trained in and knowledgeable about title III of ADA and the regulations, including the Standards.
|For Colorado College:
||For the United States of America:
CHRIS J. MELCHER
WAN J. KIM
Assistant Attorney General
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
ALYSE BASS, Senior Trial Attorney
Disability Rights Section
U.S. Department of Justice
Washington, DC 20035 - 6738