28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.151(f) Housing at a Place of Education (Section-by-Section Analysis)

The Department of Justice and the Department of Education share responsibility for regulation and enforcement of the ADA in postsecondary educational settings, including architectural features.  Housing types in educational settings range from traditional residence halls and dormitories to apartment or townhouse-style residences.  In addition to the ADA and section 504, other federal laws, including the Fair Housing Act of 1968, may apply.  Covered entities subject to the ADA must always be aware of, and comply with, any other federal statutes or regulations that govern the operation of residential properties.

Since the enactment of the ADA, the Department has received many questions about how the ADA applies to educational settings, including school dormitories.  Neither the 1991 Standards nor the 2004 ADAAG specifically addresses how it applies to housing in educational settings. Therefore, the Department is proposing a new § 35.151(f) that provides that residence halls or dormitories operated by or on behalf of places of education shall comply with the provisions of the proposed standards for transient lodging, including, but not limited to, the provisions in sections 224 and 806 of the 2004 ADAAG.  Housing provided via individual apartments or townhouses will be subject to the requirements for residential dwelling units.

Public and private school dormitories have varied characteristics.  Like social service establishments, schools are generally recipients of federal financial assistance and are subject to both the ADA and section 504.  College and university dormitories typically provide housing for up to one academic year, but may be closed during school vacation periods.  In the summer, they are often used for short-term stays of one to three days, a week, or several months.  They are also diverse in their layout. Some have double-occupancy rooms and a toilet and bathing room shared with a hallway of others, while some may have cluster, suite, or group arrangements where several rooms are located inside a secure area with bathing, kitchen, and common facilities.

Public schools are subject to title II and program access requirements.  Throughout the school year and the summer, school dormitories become program areas where small groups meet, receptions and educational sessions are held, and social activities occur.  The ability to move between rooms, both accessible rooms and standard rooms, in order to socialize, to study, and to use all public and common use areas is an essential part of having access to these educational programs and activities.

If the requirements for residential facilities were applied to dormitories operated by schools, this could hinder access to educational programs for students with disabilities.  The prior discussion about social service establishments with sleeping accommodations explained that the requirements for dispersing accessible units would not necessarily require an elevator or access to different levels of a facility.  Conversely, applying the transient lodging requirements to school dormitories would necessitate greater access throughout the facility to students with disabilities. Therefore, the Department requests public comment on how to scope school dormitories.

Question 42:  Would the residential facility requirements or the transient lodging requirements in the 2004 ADAAG be more appropriate for housing at places of education?  How would the different requirements affect the cost when building new dormitories and other student housing?  Please provide examples, if possible.