BETWEEN THE UNITED STATES OF AMERICA
UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT,
A. DEFINITIONS AND BACKGROUND
- This matter is based upon a compliance review of physical accessibility for individuals with disabilities at Swarthmore 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").
- 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, e.g. "easily accomplishable and able to be carried out without much difficulty or expense" (28 C.F.R.§ 36.304 and Section 203(b)(2)(A)(iv) of the ADA), 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 continues to 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, 28 C.F.R. Part 36.
- The United States' compliance review identified various aspects of the College's campus that it alleges were not in compliance with the ADA and the regulation, including the provisions referenced in paragraph 2 above.
- Examples of alleged violations identified 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 than36" 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; protruding objects along circulation routes; inaccessible seating in assembly spaces; and inaccessible routes to performing arts stages.
- The College contends that it has taken various steps over the years to remove architectural barriers at its campus and will continue to take such steps. The College expressly denies that it has violated the ADA. This agreement is not an admission of a violation of the ADA, or its regulations, by the College and shall not be interpreted as such an admission.
- The parties to this Settlement Agreement are the United States and Swarthmore College.In order to avoid the burden and expense of further investigation and possible litigation,the parties hereby agree to the following:
- The College, located in Swarthmore, Pennsylvania, 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).
- 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 a civil suit in this matter at this time,except as provided in Section D below.
- The subjects of this Agreement are the College's continuing obligations to:
- 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);
- Remove architectural barriers in existing facilities where such removal is readily achievable, 42 U.S.C. § 12182(b)(2)(A)(iv);
- 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);
- 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
- 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
New Construction and Alterations
- As of the effective date of this Agreement, the College shall continue to take steps to ensure that it shall design and construct all new facilities in compliance with the ADA.42 U.S.C. § 12183(a)(1), 28 C.F.R. § 36.401.
- The College shall ensure that any alterations made after the effective date of this Agreement 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 agreed to in the Plan or modifications 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 a different standard in the Physical Access Plan defined in paragraph 13.
- The College shall continue its ongoing efforts to ensure full access to services to individuals with disabilities and remove barriers to access throughout its campus where such removal is "readily achievable." 42 U.S.C. §§ 12182(b)(2)(A)(ii) and (iv),28 C.F.R. § 36.304. In addition, the College shall continue to implement policies and procedures to ensure that programs, services, and amenities requiring advanced notice or registration are located in, or can be relocated, to an accessible location.
- In order for the College to ensure that individuals with disabilities are afforded access to its services and its facilities, the College shall, as outlined in paragraphs 14 through 31below, modify its policies and procedures, and take steps to make its campus more accessible by, among other things, implementing a comprehensive plan to improve access for individuals with disabilities (the "Physical Access Plan" or the "Plan"). The College shall complete all modifications required by the Plan by or before October 1,2013.
- The College shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities according to the ADA, its implementing regulation, or this Agreement (as provided in the Physical Access Plan). 28 C.F.R. § 36.211.ADA Compliance Program Manager
- By no later than December 1, 2007, the College shall designate or hire an ADA Compliance Program Manager ("Program Manager") who shall have the authority and responsibility for ensuring that all aspects of the College campus meet the terms of this Agreement. In addition, the Program Manager shall be responsible for managing accessibility modification projects, including plans for ongoing barrier removal at the College. The position of Program Manager shall be filled and maintained for the duration of this Agreement.
- By no later than December 1, 2007, the College shall select one or more employees to assist the Program Manager in fulfilling the obligations of this Agreement. The Program Manager - along with the selected employee(s) shall undergo training on the ADA's accessibility requirements by no later than December 15, 2007. The training shall be of sufficient quality and duration to enable these individuals to become proficient in understanding the applicable accessibility requirements of title III of the ADA, including the Standards of Accessible Design.
Ensuring Access to Facilities and Service: The Physical Access Plan and Emergency Preparedness
- In order to prepare the Physical Access Plan, the College shall:
- by November 15, 2007, review in detail the United States' accessibility reports which were previously provided to the College;
- by October 1, 2008, using the Standards as a guide, the College shall survey those facilities, parts of facilities, or spaces owned or operated by the College and used as part of the place of education and shall produce written reports documenting any barriers to access consistent with applicable new construction standards, alteration standards, and barrier removal obligations. 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, and that these surveys will be performed in the following manner:
- all facilities, or parts of facilities, which the College uses (or intends to use)for programs, services, and amenities open to the campus community and/or to the public, and not requiring advanced notice or registration ("open access facilities") shall be surveyed, with respect to the elements listed in paragraphs19(a)(i) to 19(a)(x) below; and
- all facilities, or parts of facilities, which the College uses (or intends to use)for programs, services, or amenities that are open to the College community, but only with advanced notice or registration ("limited access facilities"), shall be surveyed to determine whether there is or could be an accessible entrance on an accessible route from parking and other approach points, and the College shall survey the entry level as well as any level(s) served by an elevator.
For purposes of this Agreement, the parties agree that this provision does not require the College to survey physical plant facilities or facilities used solely for storage since these facilities are not within the scope of the Plan.
- By no later than December 1, 2008, the College shall develop and submit to the United States, a comprehensive Physical Access Plan that addresses accessibility issues identified in the United States' surveys and in the surveys conducted by the College pursuant to the provisions of paragraphs 17 and 19 of this Agreement. This Plan shall include, among other things, a scheme for barrier removal, as well as methods to ensure that accessible features are maintained in a manner that affords equal access to individuals with disabilities.
- The College's Physical Access Plan shall include specific remedial actions and timetables that shall ensure, among other things, that by a time frame to be negotiated in the Plan, but which shall be no later than October 1, 2013:
- all programs, services, and amenities open to the campus community or to the public,and not requiring advanced notice or registration shall be located in open access facilities, as defined in 17(b)(i), that have the following accessible features, meeting the applicable 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 Plan:
- Accessible parking (where parking facilities are otherwise provided by the College);
- 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.
- An accessible entrance to the building, and into those rooms or spaces open to the public where such programs, services, or amenities are provided;
- An accessible water fountain (if a water fountain is provided) on an accessible level, complying with § 4.1.3(10);
- 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;
- An accessible public telephone (if public telephones are offered) on an accessible level;
- Sign age (identifying permanent rooms and spaces) with raised and Braille characters, as well as directional sign age, as required by the Standards;
- At least one accessible means of vertical access (an accessible elevator,ramp, or lift) if any program, service, or amenity offered is located above or below the accessible entry level connecting the entry level and all levels on which the program, service or amenity is offered;
- Accessible seating in classrooms or auditoriums or other spaces that meets the applicable ADA Standards; and
- One accessible route from the accessible entrance to each accessible space that meets the applicable ADA Standards.
- all programs, services, and amenities that require advanced notice or registration are relocated in (or can be relocated to) an accessible facility that meets or exceeds the criteria of paragraph 19(a), in the event that a person with a disability who needs a level of accessibility that is not otherwise provided, registers or has given notice consistent with any advance registration requirements; and
- 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.
- By no later than March 1, 2008, the College shall update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans ("emergency plans") for individuals with disabilities, and by that date it shall make them available to students, faculty and employees of the College (via Intranet, hard copy, or any other appropriate means). The College shall seek comment from the College community on its emergency plans for no fewer than 30 days, and shall make changes based upon those comments. 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. By no later than May 1, 2008, after it has considered the comments of the College community, the College shall submit its proposed emergency plans to the United States in both hard copy and on disk.
- By no later than November 1, 2008, the College shall make its draft Physical Access 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 no fewer than 21 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 within30 days of such request.
- By no later than December 1, 2008, after it has considered the comments of the College community, the College shall submit its proposed Physical Access Plan to the United States in both hard copy and on disk.
- By no later than 45 days after it receives the College's proposed Physical Access Plan(pursuant to paragraph 22) and after it receives the College's proposed emergency plans(pursuant to paragraph 20), the United States shall provide the College with a response to its proposal, including any deficiencies to be addressed.
- Within 45 days of receipt of the United States' response, (pursuant to paragraph 23), the College shall respond in writing to any of the comments provided by the United State sand provide an amended Physical Access Plan or amended emergency plans. The parties shall negotiate in good faith any disputes regarding the Physical Access Plan and emergency plans. The College shall implement the final emergency plans and Physical Access Plan 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. The College shall comply with all requirements of both plans, including the time frames contained in them.
- By no later than four months after receiving a proposal from the College, 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:
- the College shall promptly implement those aspects of the Physical Access Plan and/or final emergency plans to which the parties have agreed;
- the parties shall resort to mediation with respect to all remaining issues, and the parties shall share equally the cost of mediation; and
- any such mediation shall be conducted by a mediator or mediation organization mutually acceptable to both parties.
- By no later than nine months after receiving a proposal from the College, if the parties have been unable to resolve all remaining issues through mediation and negotiation, then the provisions of paragraph 35 shall apply as if the United States had provided the 30days notice required by that paragraph.
- 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.
- By no later than September 1, 2008, the College shall display on its web site 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 web site shall also be updated regularly to reflect newly added or renovated accessible features of the campus.
- By no later than February 1, 2008, at facility entrances and toilet rooms, where not all entrances or toilet rooms at the facility are accessible, the College shall install the International Symbol of Accessibility and sign age complying with the applicable requirements of section 4.1.2(7) of the Standards at the accessible entrances and toilet rooms, as well as directional sign age complying with section 4.1.2(7) of the Standards at the inaccessible entrances and toilet rooms which indicates the location of the nearest accessible entrance or toilet.
Assistive Listening Systems
- By February 1, 2008, in areas of assembly in new construction as defined in 28 C.F.R.§ 36.401(a)(2) and in all alteration projects affecting areas of assembly where the last application for a building permit or permit extension was certified to be complete after January 26, 1992, the College shall have installed permanent 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, by February 1,2009, either a permanently installed 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, in a manner to be set forth in the College's Physical Access Plan, which will include a detailed procedure for ensuring that those who need ALD's can easily obtain them at the time needed.
- The College shall ensure that no less than 3% of units in its housing facilities, and bathrooms serving those units (dispersed among its varied residential units to the greatest extent possible) are accessible to individuals with disabilities in a manner to be negotiated in the Plan. In addition, in a manner to be negotiated in the Plan, a number of additional College housing facilities shall have an accessible entrance, a first-floor common area (if one is provided), and a toilet room (if one is provided) that may be used by a visitor with a disability.
D. ENFORCEMENT AND REPORTING
- At any time during the effective dates of this Agreement, the United States reserves the right to inspect the College's campus, to request access to records, and to request documentation of compliance with this Agreement upon reasonable notice to the College.
- During the effective dates of this Agreement, the College shall provide the United States with an annual report - due on or before October 1 of each year - that lists every new construction or alteration project that has commenced, or for which plans have been developed, during the preceding fiscal year. 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.
- By no later than October 15, 2013, the College shall provide the United States with a detailed written report, including digital photographs, that demonstrates compliance with the Physical Access Plan. That report shall also indicate any areas of non-compliance with the Physical Access Plan as well as the dates that those areas will become compliant with the Physical Access Plan.
- 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 30 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 Eastern District of Pennsylvania. 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.
- Nothing in this Agreement waives the right of the United States to bring a civil action to enforce this Agreement or any provision thereof.
- 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 202-62-180, 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.
- 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
- 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.
- 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.
- This Agreement is effective as of the date of the last signature below and for six year sand three months from that date.
|For Swarthmore College:
|For the United States of America:
C. STUART HAIN
Associate V.P. for Facilities
|RENA J. COMISAC
Acting Assistant Attorney General
JOHN L. WODATCH, Chief
L. IRENE BOWEN, Deputy Chief
PHILIP L. BREEN, Special Legal Counsel
ALYSE S. BASS, Senior Trial Attorney
Disability Rights Section
U.S. Department of Justice
Washington, DC 20035 - 6738
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October 09, 2008