No Matter How Schools Reopen, the ADA Still Applies

This transcript is from extended cut of an interview with Joe Zesski from the Northeast ADA that aired on July 24th’s Talk of the Town.

You can listen to the interview on any podcast platform— just search Talk of the Town: After Hours.

Grace Fairchild: As July comes to a close, our attention turns to how schools will reopen for the fall semester. Can students and teachers return to the classroom if social distancing and masking guidelines are observed? How much of the classroom experience can be effectively replicated by virtual learning? Particularly for students and teachers with disabilities, the new norm at school will need to be handled on a case-by-case basis.


In our community, this discussion is being led by Ithaca City School District Superintendent Dr. Luvelle Brown and Deputy Superintendent Lily Talcott. This week began another series of forums held on Zoom, as district administration made their case for their tentative reopening plans, which the state will need to approve in August. ICSD’s current plans prioritize family choice between in-person and virtual learning. Many other schools throughout the country have pursued hybrid learning models, which combine in-person classes and virtual sessions in an unconventional schedule in order to reduce, but not eliminate person-to-person contact. But ICSD is looking to have families choose between a normal, five-day school week schedule with in person classes, or a completely virtual semester. Though many details are still to come, it’s important to evaluate whether this new plan will benefit all students and provide equal access to education.


What does this mean for students and teachers with disabilities? For questions about inclusion and the Americans with Disabilities Act, or ADA, I spoke with Joe Zesski, Program Manager at the Northeast ADA Center. The Northeast ADA Center is part of the ADA National Network, and affiliated with the Yang-Tan Institute on Employment and Disability at Cornell’s ILR School.

First, we tackled the question of masks in the classroom, a conversation that has created a lot of buzz around the ADA. Does the ADA allow exceptions to masking orders for people with disabilities?


Joe Zesski: It is not a straight yes or no question. Whenever an organization is covered by the ADA— so we could be talking about a public school or a private school, or outside of the education setting— an organization needs to be aware that if it’s covered by the law, it has to make reasonable modifications to its policies and practices and procedures. Now, does that necessarily mean that someone with a disability can’t be asked to wear a mask? No. However, if someone does have a disability and can’t wear a mask— whether it’s because of breathing issues or perhaps some other condition— the person should work with the organization, or the school in an educational setting, to find a way to get the equal access to the services or products that are being offered. So let’s say someone is going into a car dealership and they can’t wear a mask because of a disability-related condition. When they get to the dealership and there’s a requirement for everyone to wear a mask, they should communicate with the dealership or a representative to let them know that they can’t wear a mask and to ask what kind of arrangements can be made so that they can have that equal chance to access what’s there. So in a situation like that, you may need to have the person come back at a later time when there’s less crowding and more social distancing can be observed. It might need to make another arrangement to come earlier or late, before or after hours, so that they can access it and maintain more clearance, or perhaps some other arrangement can be made. When you’re looking at a grocery store setting, someone who can’t wear a mask can ask for an accommodation, perhaps to have their shopping items gathered for them, perhaps if a store offers it, they could do pick up. But the store is under an obligation to work with the person to find a legitimately safe way for that person to access the services.

When you come to the education setting, you have a couple different concerns and points of view. You have the point of view of students, and you have the point of view of teachers and other school employees. When you look at that situation, you have different factors at play. For employees of a school or for teachers, you’re looking at an employment issue under the ADA, the Americans with Disabilities Act. Under that part of the law, there is something called reasonable accommodation, which is a change in the way work is typically done in order to ensure that a person with a disability has an equal opportunity to do the job. So in that instance, they would need to explore what’s possible and what’s realistic to maintain safety and guidelines. It could be to establish some special protocols or to have some form of remote work be in play. It’s difficult to say because the ADA really has to be looked at on an individual basis— one specific case at a time— so these are just general guidelines, but they’re certainly important.

From the students’ perspective, if a student can’t wear a mask, you’re still looking at an ADA issue as well as a general education issue. In those circumstances, you would still have to look at what’s appropriate for the person, their disability, and the classes they have. You have to involve an IEP team if they have one. Or if they have a Section 504 plan, you need to look to the appropriate school officials in that situation too to meet with the parents and possibly the student to decide on the best solution. It might mean moving to all virtual learning, or setting up other conditions that allow the student to be present but not pose a risk or greatly reduce the risk to other students and workers.


GF: So I’ll go back to something you covered earlier: Title 1 [of the ADA] focusing on employment for people with disabilities. So let’s apply this to teachers: what kind of reasonable employment accommodations should schools be considering for teachers with disabilities or those who are immunocompromised or at greater health risks for COVID-19?


JZ: The first thing is to be very interactive with the employee, with the teacher. Everyone’s disability is different, it impacts them differently. Even if two people have the same general condition, it’s going to affect them differently. So my first suggestion to schools would be to have an in-depth conversation with employees to see how their health could possibly be impacted if they have an immune issue, then you can look at alternatives. If they can’t wear a mask, then explore other possibilities. If they can’t wear a mask, would a face shield or other covering be appropriate? If someone can’t be in the environment because they have an issue with immunity and they’re more highly at risk, then what alternatives can lessen the risk? There may be some solutions that can be done in the classroom in terms of limiting exposure, social distancing, providing extra cleaning— those are possible solutions. But it may be that a teacher may need to work remotely or be assigned to tasks that are done remotely, and that has to be determined on a case-by-case basis where the facts of each case, and how the person’s disability impacts them, and the advice of medical professionals all that needs to be taken into account to see what's the best.


GF: So let's go to the topic of virtual learning. What kind of changes should be made to ensure that all students have the same access to quality education in the case where schools end up going virtual? Unfortunately, there are a lot of problems with web accessibility and equal access there.


JZ: There is, and here I would definitely reflect what the Department of Education said in some of their information on COVID-19. In responding to a crisis, the school has to make sure that there is equal access to education for students and that is also true in the learning environment. So what about these issues about web accessibility and the possible lack of it?

There are a couple steps that I think still schools can look at. A school could look at doing user testing if they have a general idea already whether not they are going to be doing classes virtually. Begin the process of having it tested. Reach out to either professionals or to community members that may have a disability to do some testing. Test out the processes in the platforms that they use. Schools should also research the platforms that they're using and the accessibility concerns in that platform— how can those be addressed?

Beyond the platform itself, the school needs to look at making sure that shared documents are accessible. And that gets to the issue of educating faculty about [accessibility]. How to create an accessible Word document, or how to make an accessible PDF, or making sure that whatever medium they're using to teach, perhaps a video, that the communication in that medium is shared multiple ways. So for a video, you want to make sure that there's captions for the video so that someone who had a hearing issue could also read the transcript as well as watch the video. It begins with an organizational approach and trying to make sure, from the top down, that accessibility is in every step of the process, and baked into it, so it doesn't hopefully have to be added in later on.

Now at this point, we’re several months into the COVID crisis and we're looking at the fall semester, hopefully schools have done that. It was of course a mad scramble when it first happened, and it’s very understandable that things would be a little bit piecemealed together, but now there has been time to do some more deliberate planning, to take the time to make sure things are accessible. Things reasonably should be accessible at this point.

There are standards out there for web accessibility that schools can look at. There's something called the Web Content Accessibility Guidelines 2.0 AA is generally considered the basic, or the most appropriate level of accessibility for online content. There is also an updated version called WCHE 2.1. Again the AA level, which is sort of a middle level of the standard, is generally held to be an accessibility standard to follow. If you are a school, you want to make sure that your documents are accessible, that class interactions are accessible, that whatever platform they use has features that will allow people of different abilities to manipulate it and interact with it. So that may mean that someone can just use a keyboard in order to participate, or for someone who is deaf, you can provide live captions as class discussion goes on. If there's a key component, it's about planning and thinking how to incorporate accessibility from the ground up. That makes it a much simpler process than trying to retroactively improve accessibility.


GF: Let's move now to how parents and community members can continue to advocate for students with disabilities as we return to school and approach these reopening plans. What kind of recommendations do you have?


JZ: I have several. The first one would be to make sure that you know what your rights are, and they are different ways you can do that. You can reach out to organizations like mine, the Northeast ADA or other ADA Centers around the country, to find out what your rights are under the Americans With Disabilities Act. You can reach out to other parent-support organizations to find out when in the education setting with a child with a disability, what are their rights? Parent information centers are a good resource for that. One other resource that's out there are Independent Living Centers. For people who aren’t familiar with them, they are advocacy organizations for and by people with disabilities of all types. And almost all Centers for Independent Living have staff that work with youth in particular in the education system. Those organizations are an excellent resource to go with for information and for additional advocacy support. So if you have a meeting with your school administration about your child's needs, or about how to make the services they need usable in the COVID-19 environment, reach out to Independent Living Center. Chances are you can find an advocate that could help support you along the way through the conversation with your local school.


GF: How should parents approach administrators with these concerns?


JZ: They should be clear about what their services are, and what was agreed to by their IEP teams or by their Section 504 teams. Then, come to the table both willing to talk and to listen. Because this is a time where things are unusual, as I said earlier, it doesn't mean that your rights have changed in any way. Your child still has the right to free appropriate public education and to have the equal opportunity to receive the education services, but again, it may need to be done in different ways. When you come to the conversation with the administration, recognize that and be willing to be flexible, but also don't compromise things that are essential to your child's education to make sure that they're able to succeed. Again it's really a balancing act of measuring the priorities and rights that you have against these difficult conditions.


GF: What are your general takeaways that you think administrators and then stakeholders should be considering in reopening plans?


JZ: School administrators should be looking at being prepared and incorporating accessibility both in the physical and virtual environment, and being flexible. A key thing for school administrators to keep in mind is that the obligations to provide equal access to the educational services doesn't change and hasn't changed with COVID-19. The ADA, Section 504, the Civil Rights Act of 1964— all of those civil rights laws still apply, still are in effect. Because of that, it may take some careful planning and deliberation to make sure that schools are ensuring equal opportunity and equal access for all.

For stakeholders, I think the key takeaway is for them to be flexible as well, and also to know their rights and responsibilities related to the education process. Work with those school administrators who are trying to navigate as best they can while also meeting the needs of your students.


GF: Where can listeners [and readers] go if they have more questions about the ADA?


JZ: If people have questions about some of the things I may have touched on, they’re free to reach out to us at the Northeast ADA Center here in Ithaca, we have a 800 number. Dial 1-800-949-4232, or visit our website northeastada.org. We are a resource for you and we're glad to help, and also thank you Grace for having me be part on your podcast.



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