September 3rd, 2013
SchoolLaw.com
#505
Making your school playground accessible: It’s not child’s play!
- By Jeanne M. Kincaid
As public entities, school units are obligated to ensure that all of their programs, activities and services are accessible to individuals with disabilities, pursuant to the Rehabilitation Act and the Americans with Disabilities Act (“ADA”). Schools are well aware of their obligation to ensure that classrooms be accessible to students with disabilities. Yet, playground access may be easily overlooked. Neither law requires a school to offer a playground in the first instance. However, if a school unit has a playground on its premises, it must undertake measures to ensure that children with disabilities are provided an equal opportunity to use the facilities. Minimizing the risk of harm to all children must be the school department’s primary focus when making decisions which include enhancing accessibility. As a threshold matter, the school unit needs to determine when the playground was initially constructed and whether, when and how it has been altered. The standards that apply are based on the date of the original construction with subsequent alteration dates implicating higher accessibility standards. Accessibility standards in general, the standards regulate access for children with mobility impairments, visual impairments or hearing impairments. Nonetheless, it is likely that accessibility standards would apply to students with other types of disorders as well (e.g., students with psychological disorders). But the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) and the Uniform Federal Accessibility Standards (Rehabilitation Act) generally only target these three disorders. Accordingly, when making long-term purchasing decisions, we advise school units to be confident that they are not sacrificing compliance with these standards in a manner to accommodate a particular currently-enrolled student, who may not be legally disabled as defined by these laws (e.g., a student allergic to bee stings), while failing to include accommodations for students with mobility, visual or hearing impairments, simply because such a student may not be presently enrolled in the
school. In the event that a school’s playground area was constructed prior to 1977, then it would be considered an “existing facility” under both of these laws,1 in which case, a school unit would not necessarily need to renovate the premises if it could provide “program access.” Program accessibility permits alternative means of making the premises accessible such as through relocation or personal assistance. However, with equipment which is generally designed for nondisabled children, achieving program access is likely to be
much more difficult. In October 2000, the Architectural and Transportation Barriers Compliance Board, commonly referred to as the “Access Board,” adopted guidelines for play areas, which cover the number of components required to be accessible, the types of accessible surfacing in play areas, ramp access, transfer system access to elevated structures and access to soft contained play structures.2 Accordingly, if a school unit is either constructing a new playground or renovating an existing one, it should carefully review these guidelines. When considering the implications of access in playground areas, a school unit needs to furnish equipment and surfaces that are readily accessible to and usable by individuals with disabilities.3 However, ADAAG
SCHOOL
LAW ADVISORY
Summer 2005 Issue
Drummond
Woodsum &
MacMahon
School Law Advisory Summer 2005 Issue
Copyright © Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 2
245 Commercial Street, Post Office Box 9781, Portland, Maine 04104-5081 207-772-1941 FAX 207-772-3627
does not regulate equipment. In other words, ADAAG does not specify what type of equipment a school
would need to purchase to ensure accessibility. However, it does set forth guidelines as to the number of
accessible pieces of equipment a school must install in relation to the number of elements provided, for
example, swings, monkey bars, etc.4
With respect to ground surface areas, whatever surface the school department elects to use, it must ensure that
the surface is “firm, stable, and slip resistant.”5 Moreover, the school department is obligated to maintain its
accessible features.
Wood chips, a common choice for playground surfaces due to its obvious safety enhancements, are easily
displaced, making such surfaces more likely to present barriers for children using wheelchairs. Wood chips
present other concerns such as insect control and problems associated with a cold and wet climate, including
dangers posed by frozen ice.
Whenever a school department renovates an existing facility, such as a playground, it triggers greater
accessibility demands under the ADA.6 For example, with an existing playground, the ADA would not
necessarily require a school department to replace an existing surface in order to enhance the playground’s
accessibility. Rather than resurface an area which falls within the “existing facilities” standards, a school
department could elect to provide personal assistance, such as an adult who maneuvers the wheelchair.
However, when a school department is replacing the surface area, it must ensure that the product it uses is laid
in a manner that promotes accessibility. Yet, ADAAG does not set standards as to the type of material that
must be used.7 Moreover, in general, ADAAG only requires one accessible route and an accessible surface in
the designated areas.8 This is an important point to keep in mind as a school projects its total costs, including
maintenance, of the surface area.
It is critical that the school be relatively confident that its contractor is knowledgeable of and provides
assurances that it will meet all of the ADAAG guidelines, including purchasing accessible equipment. A key
ingredient to meaningful access is taking affirmative steps to ensure that the location of the accessible
equipment is done in a manner that does not segregate children with disabilities from their nondisabled peers.
Resources
The reader may wish to explore a range of websites for useful information on playground design and
accessibility.
• The following site offers a nicely written description regarding legal playground access
requirements, including surface areas:
www.static.kern.org/gems/siscsafetyAndLossC/PlaygroundAccessibilityOverv.pdf.
• The National Center on Accessibility has a website addressing accessible features including surfaces:
www.ncaonline.org/playgrounds/play-areas.shtml. ✔
School Law Advisory Summer 2005 Issue
Copyright © Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 3
245 Commercial Street, Post Office Box 9781, Portland, Maine 04104-5081 207-772-1941 FAX 207-772-3627
Endnotes
1. See 34 C.F.R. § 104.22 (Rehabilitation Act); 28 C.F.R. § 35.150 (ADA).
2. See Fed. Reg. Vol. 65 p. 62498 (10/18/2000), codified in 36 C.F.R. Part 1191 and ADAAG § 15.6.
3. See ADAAG, § 15.6
4. See Table 15.6.2.2, 36 C.F.R. Part 1191.
5. See ASTM F 1951-99 (safety standards incorporated by reference into the ADAAG standards).
6. See ADAAG, § 3.5 (defining “alterations”).
7. See ADAAG, section 15.6.7. For example, when the Access Board issued proposed regulations, a parent of a child using a cochlear
implant requested that 50% of the playground equipment be made of steel as she attested that static electricity caused by some
playground equipment can be damaging to cochlear implants. The Access Board declined to set such standards. See Fed. Reg. Vol. 65
p. 62503 (10/18/2000).
8. See ADAAG, § 15.6.4.