Summer Camp, the Americans with Disabilities Act and your Child's Rights

With school almost out, it’s time to begin thinking about camp and other arrangements for the summer. Children with disabilities require and need recreation the same as other children. Under the Americans with Disabilities Act (“A.D.A.”), your child is entitled to attend any camp or activity that non-disabled children attend, with modifications, and with a few exceptions. It is highly critical that you discuss any needed modifications way before the first day of camp, so the entity has time to make the necessary preparations. Enter into discussions taking a team approach, as you will be entrusting your child to this program all summer. Be reasonable in your requests, and remember, just because your friend’s child is doing it, the program may not be a good fit for your child, even with modifications. This article will illustrate for you who is protected by the A.D.A, the modifications required under the law, and how to prevent discrimination.

What is the A.D.A?

42 U.S.C. §12182(a) provides in part 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.

How Did the A.D.A come about?

In 1990, the United States Congress made findings that laws were needed to more fully protect “some 43 million Americans [with] one or more physical or mental disabilities;” that “historically society has tended to isolate and segregate individuals with disabilities;” and that “such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;” that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self sufficiency for such individuals;” and that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous....” 42 U.S.C. § 12101.

What is a Public Accommodation?

A public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the enumerated categories under the law. Day camps and overnight camps fall under two categories of public accommodation as defined by the A.D.A.; subsections 9 and 12.

Disability Defined

Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. The phrase physical or mental impairment means:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine

(ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;

(iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;

(iv) The phrase physical or mental impairment does not include homosexuality or bisexuality.

The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. The phrase is regarded as having an impairment means:

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a private entity as constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(iii) Has none of the impairments defined in the above paragraph of this definition but is treated by a private entity as having such an impairment.

Participation Cannot be Denied on the Basis of Disability

The A.D.A states: it shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. This means that a camp cannot deny any child the right to participate in their programs solely based on the individual’s disability or any disability as a whole. An example would be it is illegal for a camp to not allow children with asthma to register.

Participation Must be the Same

The A.D.A. states that it is discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. This means that any camp programs offered to children without disabilities must also be offered to children with disabilities. There is a caveat regarding injury to the disabled child or others that will be discussed herein.

Separate is not Equal

The A.D.A. states that it shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. This portion of the A.D.A seeks to ensure that children with disabilities are as “mainstreamed” as possible at camp and not secluded from the other campers. However, if the camp comes to you and suggests that based on your child’s physical or cognitive disability they will thrive better in a smaller group with higher counselor to camper ratio, this is being offered to benefit your child and not to discriminate. The law specifically requires that services be provided in the most integrated setting appropriate to the needs of the individuals. As a parent you can decipher between a necessary accommodation such as the offering of a smaller group with like-disabled peers, or an attempt to hide your child away from the other campers and not deliver similar services.

Modifications

A public accommodation (camp) shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford services, facilities, privileges, advantages, or accommodations to individuals with disabilities. A public accommodation does not have to comply if it can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. The key word is reasonable. Make sure the modification you are requesting is reasonable. These modifications, whether they be a physical modification or practice modifications, are similar to those you would request in an IEP or 504.

Danger or Injury

The A.D.A does not require a public accommodation to permit an individual to participate in or benefit from services, facilities and accommodations of that public accommodation when the individual poses a direct threat to the health or safety of others. If your child is physically aggressive with other children for example, alternative arrangements may have to be discussed. Always speak to a supervisor if you are having trouble with modifications. If the issue can not be resolved within the organization, speak to an attorney or contact United States Department of Justice A.D.A Enforcement Bureau.

Michael Dorfman