SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE PARK SCHOOL

  1. The parties to this Settlement Agreement (Agreement) are the United States of America (the United States) and The Park School (Park School), located in Brookline, Massachusetts.
  2. This matter was initiated by a complaint submitted to the U.S. Attorney’s Office (No. 2016-00689; DJ No. 202-36-295) alleging that Park School discriminated on the basis of disability in violation 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.

Background

  1. The complainants, Mr. and Ms. O, are the parents of a five-year-old, H.O.  H.O. has a spinal cord injury and quadriplegia.  H.O. uses a wheelchair for mobility.  Mr. and Ms. O allege that Park School discriminated on the basis of disability in denying H.O. admission to pre-Kindergarten for the 2016-2017 school year.  The Park School denies discriminating against H.O. on the basis of her disability, but agrees (through this Settlement Agreement) to affirmatively improve its process for individuals with disabilities.
  2. The ADA prohibits a place of public accommodation from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services and facilities.  42 U.S.C. § 12182(a).
  3. The ADA prohibits a place of public accommodation from imposing or applying eligibility criteria that screen out or tend to screen out individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.  42 U.S.C. § 12182(b)(2)(A)(i). 
  4. The ADA also prohibits a place of public accommodation from subjecting an individual to a denial of the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity based on the individual’s disability.  42 U.S.C. § 12182(b)(1)(A)(i).  A 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 discrimination unless the modifications would constitute a fundamental alteration. 42 U.S.C. § 12182(b)(2)(A)(ii).  The ADA also obligates private entities to conduct readily achievable barrier removal to remove architectural and communication barriers to access.  42 U.S.C. § 12182(b)(2)(A)(iv-v).
  5. Park School is a private school providing education to children in pre-kindergarten through eighth grade and is, therefore, a place of public accommodation covered by Title III of the ADA.  42 U.S.C. § 12181(7)(J).
  6. Ensuring that places of education do not discriminate on the basis of disability is an issue of general public importance.  The United States is authorized to investigate alleged violations of Title III of the ADA, to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes, and to bring a civil action in federal court in any case that raises issues of general public importance.  42 U.S.C. §§ 12188(b), 12212; 28 C.F.R. §§ 36.502, 503, 506. 
    1. The United States investigated Park School in response to Mr. and Ms. O’s complaint.  Based on its investigation, the United States determined that Park School violated the ADA by discriminating against H.O on the basis of her disability by failing to make an appropriate individualized assessment of modifications that would be necessary to accommodate H.O.’s disability and whether these modifications would constitute a fundamental alteration of the nature of its goods, services, facilities, privileges, advantages, or accommodations, despite the fact that, in this case, Mr. and Mrs. O suggested and offered to provide and pay for modifications for H.O.
  7. As a result of the United States’ investigation, and because Park School is committed to fully complying with the ADA and maintaining a diverse student body that includes students with disabilities, Park School agrees to the following:

Actions to be Taken by Park School

  1. General Obligations.  Park School agrees that it will not discriminate against any individual on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations, pursuant to 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201. 
  2. Park School agrees to provide children with disabilities an equal opportunity to attend Park School and access all of the school’s goods, services, facilities, privileges, advantages, or accommodations provided by Park School.  Park School agrees not to apply application or eligibility criteria that screen out or tend to screen out individuals with disabilities.  Park School agrees to make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford access to children with disabilities, unless the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations as set forth in 28 C.F.R. § 36.302.
  3. Park School will not retaliate against, or coerce in any way, any person trying to exercise the rights of any person under this Agreement.
  4. The Head of Park School will be responsible for ensuring that Park School is implementing and complying with the policies and procedures set forth in paragraphs 14 through 16 below.  The Head of Park School will review any decision to exclude from enrollment any child with a disability. 
  5. Within sixty (60) days of the effective date of this Agreement, Park School shall submit to the United States, for review and approval, written policies and procedures on Park School’s obligations under Title III of the ADA. Those policies and procedures shall, at a minimum, include the following:
    1. Nondiscrimination Policy.  Adoption of the nondiscrimination policy attached as Appendix A, and inclusion of the policy on Park School’s website and in its employee and parent1 handbooks.  As part of its affirmative efforts towards nondiscrimination and to foster its broader efforts at an inclusive community, Park School will also submit to the United States its Accessibility Plan that describes in detail how the school will remove architectural barriers to access, including any required alterations or changes to its facilities to ensure that the facilities comply with the ADA, for students, parents, or visitors, including those who use wheelchairs for mobility.
    2. Admissions Decisions.  When a parent of a child applying for admission notifies Park School that, if the child is admitted to Park School, the parent will be requesting a reasonable accommodation or modification of Park School’s policies, practices, or procedures based on the child’s disability or that architectural barriers to access limit the student’s ability to access the facilities, Park School will:
      1. Conduct an appropriate individualized assessment of the applicant and his or her needs, ensuring that Park School’s eligibility criteria does not screen out or tend to screen out applicants with disabilities;
      2. Assess and determine whether the requested accommodations or modifications are reasonable and/or necessary in order to attend Park School, and if Park School believes they are not reasonable and/or not necessary, whether Park School could implement alternative accommodations or modifications, and whether any elements of the facilities are subject to readily achievable barrier architectural removal requirements;
      3. Assess and determine whether making the requested accommodations or modifications would constitute a fundamental alteration to the nature of the goods, services, facilities, privileges, advantages, or accommodations at Park School, and if Park School determines they would constitute a fundamental alteration, whether Park School could implement alternative accommodations or modifications that would not constitute a fundamental alteration;
      4. If the accommodations or modifications do not constitute a fundamental alteration, determine whether to admit the applicant consistent with Park School’s admissions preference structure and without considering the disability in the admissions decision.
    3. Prior to making a decision to deny admission to an applicant with a disability whose parent has requested an accommodation or modification or requested that readily achievable barrier removal be conducted, Park School will:
      1. Discuss with the parent the reasons why the school determined that the accommodation(s) or modification(s) were not reasonable, not necessary and/or constituted a fundamental alteration or why removal of architectural barriers is not considered readily achievable; and
      2. Allow the parent the opportunity to suggest alternative accommodations or modifications and to provide additional information (if the parent desires to do so), including but not limited to medical records, facilitation of communication with medical or clinical professionals, and/or access to current school classroom, teachers, or records.
      3. If the parent chooses to provide additional information, reconsider the determinations made under paragraph 14.b. above.
    4. Denial of Admission.  The Head of School will review and approve any decision to deny admission to an applicant with a disability on the basis of fundamental alteration, and Park School shall notify the child’s parent, in writing, of the reason(s) for the denial.
    5. Request for Reasonable Accommodations.  Upon receiving a request for a reasonable accommodation or modification in policies, practices, or procedures from the parent of an enrolled student with a disability, Park School will go through the procedures set forth in paragraphs 14.b.i.-iii. above to determine whether it can provide reasonable modifications without fundamental alteration.
  6. Within ninety (90) days from the date that the revised policies and procedures set forth in paragraph 14 are implemented, Park School shall provide comprehensive training on the policies and procedures to all individuals with responsibility for interviewing applicants, reviewing applicants, granting or denying enrollment or re-enrollment, and/or considering requests for reasonable modifications of any Park School policy, practice, or procedure.

Reporting and Implementation

  1. Park School shall have the following reporting and implementation requirements:
    1. Park School shall submit proposed revised policies and procedures pursuant to paragraph 14 to the United States within sixty (60) days of the effective date of this Agreement.
    2. Once the United States approves the revised policies and procedures in writing, Park School will implement them.
    3. Park School shall provide training pursuant to paragraph 15 within ninety (90) days of implementation of the new policies and procedures and certify in writing to the United States that it has been completed.

Enforcement

  1. Once all of the requirements, including approvals, set forth in paragraph 16 are fulfilled, this Agreement shall terminate.
  2. This Agreement fully and finally resolves any and all of the Title III allegations raised in the complaint (No. 2016-00689; DJ No. 202-36-295) and investigated by United States.  It is not intended to remedy any other potential violations of the ADA or any other federal law by Park School.
  3. Failure by the United States to enforce this Agreement 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.
  4. This Agreement shall be binding on the United States and on Park School, its agents, employees, and staff.
  5. This Agreement constitutes the entire agreement between the United States and Park School 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.
  6. The person signing this Agreement for Park School represents that he or she is authorized to bind Park School to this Agreement and is acting pursuant to a vote by, and authorization of, Park School’s Board of Directors and is fully authorized to execute this Agreement on behalf of Park School.
  7. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public.
  8. A copy of this document or any information contained in it will be made available to any person, on request, by Park School or the United States.
  9. The effective date of this Agreement is the date of the last signature below.

1 In this document, the word “parent” refers inclusively to the parent(s) or legal guardian(s) of a child.

 

 

 

Dated: September 14, 2017

 

 

 

 

 

 

 

 

Dated: September 15, 2017

THE PARK SCHOOL

/s/ Cynthia A. Harmon
Head of School
The Park School
171 Goddard Avenue
Brookline, Massachusetts 02445

 

WILLIAM D. WEINREB
Acting United States Attorney


/s/ Torey B. Cummings
Assistant United States Attorney
United States Attorney's Office
District of Massachusetts
John Joseph Moakley Courthouse
1 Courthouse Way, Suite 9200
Boston, Massachusetts, 02210
Telephone: (617) 748-3281
E-Mail: torey.cummings@usdoj.gov