SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
BEGINNING MONTESSORI ACADEMY, BALDWIN PARK, CALIFORNIA

 


  1. The parties to this Settlement Agreement ("Agreement") are the United States of America and Beginning Montessori Academy (Montessori Academy), located in Baldwin Park, California.
  2. This matter was initiated by a complaint, D.J. No. 202-12C-367, filed with the United States Department of Justice (the "United States") against Montessori Academy alleging violations of Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.

    I. Background

  3. The complainant, Ms. Kathy Castaneda, is the mother of a five-year-old, [redacted], who has autism. In a letter dated June 11, 2008, Ms. Castaneda alleges that the Montessori Academy notified her that [redacted] would not be accepted for the following school year and that as of July 1, 2008, the Montessori Academy would no longer accept any child with autism or any specialized condition or need.
  4. The Montessori Academy is a 100% State Funded private preschool program that provides preschool educational services and is, therefore, a place of public accommodation covered by Title III of the ADA. 42 U.S.C. § 12181(7)(K) and Title V, of the California Department of Education, Code of Regulations.
  5. The United States is authorized to investigate alleged violations of Title III of the ADA, and to bring a civil action in federal court if the United States 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. 42 U.S.C. § 12188(b). Preventing discrimination on the basis of disability, including autism, is an issue of general public importance.
  6. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a).

    The ADA also prohibits a place of public accommodation from subjecting an individual on the basis of disability to a denial of the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). Failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities is also discriminatory unless the modifications would constitute a fundamental alteration. 42 U.S.C. § 12182(b)(2)(A)(ii).

  7. The Montessori Academy denies that it violated Title III of the ADA and claims that at all times it acted consistently with the ADA.
  8. Nevertheless, to demonstrate that it is committed to full compliance with the ADA, including the amendments to the ADA codified by the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) ("ADAAA"), the Montessori Academy has established and implemented policies and procedures, that are designed to afford children with disabilities a benefit equal to that provided to others, and to make reasonable modifications in policies, practices, and procedures when necessary to provide appropriate supervision or assistance to children with disabilities in order to ensure safe participation in all day care activities.
  9. In consideration of the terms of this Settlement Agreement, and in particular the provisions in paragraphs 11, 12, 13, 14, 15, 16 and 17, the United States agrees to refrain from taking further action in this case, except as provided in paragraphs 18-21.

    II. Terms of Agreement

  10. The Montessori Academy agrees that it will not discriminate against any individual on the basis of disability, including autism.
  11. The Montessori Academy agrees to provide children with disabilities, an equal opportunity to attend the Montessori Academy and to participate in all programs, services, or activities provided by the Montessori Academy, except to the extent that they are unable to reasonably participate due to their disability or unable to participate after reasonable modifications in the policies and procedures have been made as set forth in in 28 C.F.R. § 36.302. The Montessori Academy agrees to make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford its child care services and facilities to children with disabilities, unless the modifications would fundamentally alter the nature of the program, service or activity as set forth in 28 C.F.R. § 36.302.
  12. Within thirty (30) days of the effective date of this Agreement, the Montessori Academy shall designate a staff member ("ADA Compliance Officer") who shall have the responsibility for ensuring that the policies and procedures set forth in paragraphs 13-16, below, are fully complied with and implemented. The ADA Compliance Officer will review any decision to exclude from enrollment any child with a disability.
  13. Within sixty (60) days of the effective date of this Agreement, the Montessori Academy shall submit to the United States, for review and approval, written policies and procedures on the Montessori Academy's obligations under Title III of the ADA. Those policies and procedures shall, at a minimum, include the following:

    (a) Adoption of the nondiscrimination policy attached as Appendix A, and inclusion of the policy in the Montessori Academy's employee and parent handbooks.

    (b) Upon receiving a request in writing for a reasonable accommodation or modification in policies, practices, or procedures from the parent or legal guardian of the child, the Montessori Academy will initiate a discussion with the parent to determine whether the child has a disability for which he or she needs a reasonable modification of any Montessori Academy policy, practice, or procedure and to explore what accommodations or modification(s) may be available.

    (c) If a request for reasonable accommodation or modification is denied, the Montessori Academy will document each reason for the denial of the request and shall submit that documentation to the ADA Compliance Officer for review.

    (d) The Montessori Academy will make good faith efforts to provide a response to a written request for a reasonable modification of any Montessori Academy policy, practice, or procedure, in writing, no later than twenty (20) days from the date the request is received. If the request is denied, the Montessori Academy shall notify the child's parent(s) or guardian(s), in writing, of the reason(s) for the denial.

  14. Within ninety (90) days from the date that the Montessori Academy implements the policies and procedures set forth in paragraph [13], above, the Montessori Academy shall provide appropriate training to all individuals with responsibility for interviewing applicants, reviewing applicants granting or denying enrollment, and/or considering requests for reasonable modifications of any Montessori Academy policy, practice or procedure. New employees with comparable responsibilities hired during the term of this Agreement shall be provided comparable training.
  15. The Montessori Academy will provide training to the teacher(s) who is directly responsible for any child enrolled at the Montessori Academy who has been identified by his or her parent as being diagnosed with autism. That training will include a general overview of autism and typical assistance needs of the individual with autism. This training may be given by the parent or guardian of the child, or by a qualified person agreed upon by the parents or guardians.
  16. Within thirty (30) days of the effective date of this Agreement, the Montessori Academy will send to Ms. Castaneda by certified mail, return receipt requested, or by overnight mail, a copy of the Agreement and the release form attached as Appendix B. Within thirty (30) days of receiving the signed release form, the Montessori Academy shall send to Ms. Castaneda a check payable to Kathy Castaneda, as parent and guardian of the minor [redacted], in the amount of $5,000.00 (five thousand dollars). The check should be sent by certified or overnight mail to the address provided by the United States. A copy of the check and the accompanying letter shall be sent to counsel for the United States.

    III. ENFORCEMENT AND IMPLEMENTATION

  17. This Agreement fully and finally resolves any and all of the allegations by the complainant and the United States in this case. It is not intended to remedy any other potential violations of the ADA by Montessori Academy.
  18. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the Montessori Academy and the parties will attempt to resolve the concerns in good faith. The United States will give the Montessori Academy thirty (30) days from the date it notifies the Montessori Academy of any breach of this Agreement to cure that breach, before instituting any court action. If the parties are unable to reach a satisfactory resolution within that period, the United States may bring a civil action in federal district court to enforce this Agreement or Title III, and may in such action seek any relief available under law.
  19. Notices: All notices reports, or other such documents required by this Agreement shall be sent by fax and by delivery via overnight express mail to the following address:

    Eugenia Esch
    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    1425 New York Avenue, NW
    Washington, D.C. 20005
    (202) 515-3816 (telephone)
    (202) 305-9775 (facsimile)

  20. During the term of this Agreement, the Montessori Academy will notify the United States of any written complaint, lawsuit, charge, or grievance alleging discrimination by the Montessori Academy on the basis of disability. Such notification must be provided in writing within fifteen (15) days of when the ADA Compliance Officer of Montessori Academy has received written notice of the allegation and will include at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by the Montessori Academy relevant to the allegation.
  21. In consideration for the terms set forth above, the United States will not institute a civil action alleging violations of the ADA based on the Department of Justice Complaint DJ No. 202-12C-367, except as provided in paragraph 18, above.
  22. Failure by the United States to enforce this entire Agreement or any of its provisions shall not be construed as a waiver of its right to enforce other provisions of the Agreement.
  23. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect.
  24. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement and does not affect the Montessori Academy's continuing responsibility to comply with all aspects of the ADA.
  25. This Agreement shall be binding on the Montessori Academy, its agents and employees. In the event the Montessori Academy seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Montessori Academy shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
  26. This Agreement constitutes the entire agreement between the United States and the Montessori Academy on the matters raised in the Agreement and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable.
  27. A signatory to this document in a representative capacity for either party represents that he or she is authorized to bind that party to this Agreement.
  28. The effective date of this Agreement is the date of the last signature below.
  29. The Montessori Academy will not retaliate against, or coerce in any way any person trying to exercise the rights of any person under this Agreement.
  30. The duration of this Agreement will be five (5) years from the effective date.

For Beginning Montessori Academy

For the United States of America:
___________________________
SHIV MEDIWAKE, Administrator
Beginning Montessori Academy 1969 Paseo Gabriela
San Dimas, Ca 91773
Dated: _____________________

SAMUEL BAGENSTOS
Principal Deputy Assistant Attorney General

RENEE M. WOHLENHAUS, Acting Chief
Disability Rights Section
Civil Rights Division

  __________________
Eugenia Esch
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
Washington, DC 20530
Telephone: (202) 514-3816

Dated: _______________________

Attachment

APPENDIX A

NONDISCRIMINATION POLICY UNDER THE AMERICANS WITH DISABILITIES ACT

In accordance with the requirements of Title III of the Americans with Disabilities Act of 1990, as amended the Beginning Montessori Academy, California will not discriminate against any individual on the basis of disability. The Beginning Montessori Academy will make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford its services and facilities to individuals with disabilities, unless the modifications would fundamentally alter the nature of its services. The Beginning Montessori Academy will not exclude any individual with a disability from the full and equal enjoyment of its services and facilities, unless the individual poses a direct threat to the health or safety of others, or him/herself, that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. The Beginning Montessori Academy will not exclude any individual from the full and equal enjoyment of its services and facilities because of the individual's association with a person with a disability.


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