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State agency: Entire band room does not have to be accessible

01:00 AM EST on Tuesday, December 23, 2003

Journal Staff Writer

NORTH KINGSTOWN -- The state Department of Education has ruled that school administrators must make only the first level of the new high school band room accessible to students with disabilities.

"The room is accessible and it always has been," School Committee Chairman Donald DeFedele said yesterday. "The issue is the entire room is not accessible, but the decision says that an accommodation can be made for someone in a wheelchair."

But the tiered band room may not stay that way for long. The state Governor's Commission on Disabilities may appeal the decision, said Harvey Salvas, state deputy coordinator for disabilities.

The Governor's Commission says the room is not accessible to students in wheelchairs and violates the Americans with Disabilities Act. The commission requested the state Department of Education withhold construction aid for the 2-year-old high school until the violations are corrected.

The decision released Friday by the state Department of Education does not mention construction aid. Spokesman Elliot Krieger declined to comment on whether that is still an option.

"I'm not pleased with the decision. It sounds like: let's cut the baby in half," Salvas said. "I'd rather see the entire band room accessible with no levels, instead of one-tenth or one-eighth accessible. Their logic is pretzel logic, not good logic. In education, everything needs to be accessible to all; that's always our mission."

Salvas said the state Accessibility Committee will meet next month and decide whether it will appeal the decision to the state Board of Regents of Elementary and Secondary Education or the U.S. Department of Education Office of Civil Rights.

The state Department of Education ruling states that ADA regulations address stadium seating, but not tiered band rooms. However, the ruling says that under the Minnesota ADA code, band rooms are an exception.

"Band, orchestra and choir risers must have access to the director/conductor level and at least one performance level. The director/conductor level and performance level may be the same level," the code reads.

In the decision, the Education Department ordered the school administration: to keep the surface area in front of the risers wheelchair accessible; make the first level of the risers accessible to persons in wheelchairs and to make any surface area used by the conductor wheelchair accessible.

In the high school band room, the conductor and first performance level, which is about 12 feet, are at floor-level and are fully accessible, School Supt. James M. Halley said.

"The decision basically upheld the School Department. Our compromise of offering modifications to the first level is beyond what their interpretation of the law is," Halley said. "I'm satisfied with the decision."

The School Department plans to install a ramp to the next tier as soon as possible, Halley said. He was unsure of the cost of the work or if the district will need to go out for bid on the project.

"That's such a small area, we can probably put a ramp up there. It's possible we could make a portable ramp that can be used when a person needs to access it," Halley added.

Krieger said there is no timeline for when the upgrades must be addressed and the Education Department is unable to monitor the school's compliance.

"We don't have the capacity to do inspections. We're reliant that if someone is dissatisfied, they'll report it to us," he said.

The current building occupancy certificate says the school can be used with the exception of the band room.

Town Building Official John Lees said he will reinspect the school and change the certificate once the upgrades are made and "once there's a final decision."

The state Education Department has been investigating the band room for over a year. At a hearing last April -- which School Committee members say they knew nothing about -- Halley and the band instructor testified that the room is accessible.

"There are several solutions for handicapped students: use the band room on the first level, or move to the auditorium or the other music room," Halley said.

But parents said they prefer special needs children be able to participate in every aspect of band and to be treated the same as other students.

"What is disappointing to me is that the Department of Education doesn't take a stand and support the law," said Sharon Schubert, co-chairwoman of the North Kingstown Special Education Local Advisory Committee. "You shouldn't have to complain if you have a disability to get something done. The law is there so you don't have to complain and every student has an opportunity."