Most child care programs, preschools, and day care centers are public accommodations and cannot discriminate against children on the basis of disability. However, it is not always clear what constitutes a disability or how to make a reasonable accommodation for a child with a disability. Many cases in this area are settled without extensive litigation, benefitting both children who might suffer harm as a result of lengthy litigation and child care centers attempting to curb rising childcare costs. This article summarizes the current law in this area, including available settlement information and Department of Justice policies.
In the United States prior to the 1960s, a trend existed which segregated individuals with disabilities from the rest of society. In the 1960s, a change in the philosophy of the nation began to occur that reflected an idea that all individuals should be able to realize their potential and should not be segregated or separated because of their differences. As we turned away from separation in a racial context, we began to look at other groups we segregated from the mainstream of society and began to attempt to integrate them as well. The Rehabilitation Act was passed in 1973 and was the first federal statute providing for nondiscrimination on the basis of disability. It provided that the federal government, federal contractors, and recipients of federal financial assistance could not discriminate on the basis of disability. In 1975, the Education for All Handicapped Children Act was passed by Congress (now called the Individuals with Disabilities Education Act or IDEA1). This act reflected court decisions about equal protection and due process when educating children with disabilities in the public school system and addressed questions of procedural safeguards and funding in that context. In 1990, the Americans with Disabilities Act (ADA) was passed, providing much more comprehensive coverage for individuals with disabilities.2 The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation and telecommunications.3 The ADA incorporated many of the areas covered under the Rehabilitation Act.
Most actions against child care centers or private schools can be brought under Title III of the ADA, which covers public accommodations. Title III states 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.4
Several different categories of public accommodation are defined, specifically including nurseries, private schools, and day care centers.5 Under Title III, public accommodations must comply with basic nondiscrimination requirements prohibiting exclusion, segregation and unequal treatment. Title III does not apply to private child care programs that are controlled or operated by religious organizations, although it does apply to programs that operate on the premises of religious organizations but are not operated by the religious organization (for instance, a child care program that leases space from a church).6 However, many such programs receive federal financial assistance in the form of school lunch programs. Under Section 504 of the Rehabilitation Act, recipients of federal financial assistance are not allowed to discriminate on the basis of disability against otherwise qualified individuals. Between coverage under the ADA, and the coverage that remains under Section 504 of the Rehabilitation Act, IMAGE FORMULA10almost all child care centers are prohibited by law from discriminating against children with special needs or disabilities. …