NSBA's Letter to the Senate Education Committee: September 16, 2008

The Honorable Edward M. Kennedy
Chairman
Committee on Health, Education, Labor and Pensions
United States Senate
Washington, DC 20505

The Honorable Michael B. Enzi
Ranking Member
Committee on Health, Education, Labor and Pensions
Untied States Senate
Washington, DC 20505

Re: Joint House and Senate Conference Committee on Amendments to the Americans with Disabilities Act of 1990

Dear Chairman Kennedy and Ranking Member Enzi:

The National School Boards Association (NSBA), representing over 95,000 local school board members through state school boards associations across the nation, would like to express our concerns and recommendations as the Joint House and Senate Committee prepares final language on the amendments to the Americans with Disabilities Act (ADA) for adoption.

NSBA fully supports the goals and objectives of the Individuals with Disabilities Education Act (IDEA), and very much appreciates the support of the Congress in the passage of the current law. Additionally, as major employers across the nation, local school boards continue to fully support the goals and objectives of the current ADA.

However, with the passage of the Americans with Disabilities Amendments Act, H.R. 3195, by the United States House of Representative on June 25, 2008, and the passage of the Americans with Disabilities Amendments Act of 2008, S. 3406, by the United States Senate on September 11, 2008, local school boards are concerned that the well-intended actions of the House and Senate could result in unintended consequences for K-12 schools.

Because of the uniqueness of education institutions, we note that Sec. 6(a)(1)(f) of the Senate bill reiterates the current statutory exception that postsecondary institutions are not required to make modifications in policies, practices, or procedures if doing so would constitute a fundamental alteration of their academic requirements. NSBA supports this language, and strongly recommends that this language be modified to specifically include elementary and secondary education as well in the final bill.

In addition, we strongly recommend adding a provision under Section 6 that clarifies that “nothing in this Act alters the eligibility and services under the Individuals with Disabilities Education Act.”

NSBA is also concerned that the broader definitions of disability and expansion of coverage contained in the House bill, H.R. 3195, could create operational problems for local school districts. Both versions of the bill, but the House bill in particular, intend to substantially increase the number of employees covered by the ADA while giving little consideration to how significantly a particular disability affects an employee. Therefore we would prefer the language of the Senate bill, S. 3406, which does not define “substantially limits” to mean “materially restricts.”

Of equal concern, NSBA believes that the new definitions of disability in these bills would create potential situations where children’s safety or education could be compromised. As you are aware, the responsibilities of public schools are to educate and provide a safe and positive learning environment for all students. Therefore, the final language should allow public schools, under specific circumstances, to make decisions considering the safety and well-being of the students without being subject to costly disputes.

Further, NSBA is concerned that the new definitions of disability in these bills would trigger an increase number of students who have minor or corrected conditions to claim Section 504 eligibility. This would incur additional costs to school districts that would not be able to be absorbed, particularly when IDEA is not fully funded and No Child Left Behind is under-funded.

Finally, NSBA urges you to reconsider the effective date of the new law. As proposed in both the House and Senate bills, the effective date would be January 1, 2009. However, given the potential impact on our public schools and the typical start date for the academic year in August or September, we urge you to establish the effective date for coverage to schools not later than the beginning of the 2009-2010 academic year.

Thank you for the opportunity to comment. Questions regarding our comments should be directed to Reginald M. Felton, director of federal relations, at 703-838-6782.

Sincerely,

Michael A. Resnick
Associate Executive Director

Cc: Members, Senate Committee on Health, Education, Labor and Pensions