Accessibility Requirements for Sorority and Fraternity Facilities
Recently the question was raised regarding the accessibility requirements for sororities and fraternities at universities and colleges in the United States.
The accessibility regulations that may apply to sororities and fraternities include the Americans with Disabilities Act (ADA), Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Department of Education Title 34 (DOE Title 34).
In researching this topic, I offer the following comments, some of which came from an article by William Goren, an attorney and professor known as an authority on the ADA and the Rehabilitation Act of 1973, a 1994 statement from the Department of Justice regarding this issue, an article posted by the ADA Network, and an article posted by Fraternal Law Partners.
ADA Logo
The ADA applies to Title II facilities at State, County, and Local government facilities, and Title III facilities for public accommodations and commercial facilities. Universities, and their facilities, can be classified as either Title II for state universities or Title III for private universities.
A public accommodation is a place open to the general public that offers goods and/or services to the general public. Examples may include the following:
Places of lodging (e.g., inns, hotels, motels, fraternities, sororities);
Establishments serving food or drink (e.g., restaurants, cafeterias, and bars);
Places of exhibition or entertainment (e.g., motion picture facilitys, theaters, concert halls, stadiums);
Places of public gathering (e.g., auditoriums, stadiums, lecture halls);
Sales or rental establishments (e.g., bakeries, grocery stores, shopping centers);
Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, fire stations, law enforcement, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, clinics, hospitals);
Public transportation terminals, depots, or stations;
Places of public display or collection (e.g., museums, libraries, galleries);
Places of recreation (e.g., parks, zoos, amusement parks);
Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate public and private schools);
Social service center establishments (e.g., nursing homes, long-term care, assisted living, day care centers, food banks, adoption agencies); and
Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses, parks, trails, miniature golf).
FHA Logo
The FHA applies to multi-family housing facilities consisting of four or more dwelling units. A dwelling unit is defined as a single unit of residence for a household of one or more persons. Examples of dwelling units covered by the FHA Design Manual (FHADM) include: condominiums, an apartment unit within an apartment building, and other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling (FHADM pg 16). Examples of the latter include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons. The Fair Housing Act covers most types of multi-family housing. In some circumstances it exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members (FHADM pg 5).
Section 504 Graphic
Section 504 applies to entities and their facilities if they receive some form of federal assistance, such as money. All public/state school districts, colleges, or universities must comply with Section 504 and Title II of the ADA because they receive some form of federal assistance. Section 504 and the ADA apply to all programs and facilities of a public school or college, not simply academics or academic facilities. These programs can include athletics, band, cheerleading, clubs, academic teams, etc., whether the program occurs on campus or off campus.
Sec. 504 [Nondiscrimination Under Federal Grants] states, “No otherwise qualified handicapped individual in the United States, as defined in section 7 (6), shall, solely by reason of his [/her] handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
Department of Education Logo
DOE Title 34 implements Section 504 and applies to each recipient of Federal financial assistance from the Department of Education and to the program or activity that receives such assistance. Department of Education Title 34, Subtitle B, Chapter I, Part 104 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE, Subpart A -- General Provisions, 104.45, Housing, states:
a) Housing provided by the recipient. A recipient [of federal assistance] that provides housing to its nonhandicapped students shall provide comparable, convenient, and accessible housing to handicapped students at the same cost as to others. At the end of the transition period provided for in subpart C, such housing shall be available in sufficient quantity and variety so that the scope of handicapped students' choice of living accommodations is, as a whole, comparable to that of nonhandicapped students.
b) Other housing. A recipient [of federal assistance] that assists any agency, organization, or person in making housing available to any of its students shall take such action as may be necessary to assure itself that such housing is, as a whole, made available in a manner that does not result in discrimination on the basis of handicap.
Item b above connects the University to a facility such as a sorority or fraternity house if the University received federal assistance and also assists the sorority or fraternity to make housing available for any students attending the University.
Neither Section 504 nor the ADA requires that all buildings be made fully accessible to individuals with disabilities. Those buildings constructed after the Section 504 regulation was issued in 1977 must be fully accessible. Buildings constructed before Section 504 was issued, and not altered after Section 504 was issued, do not have to be made fully accessible but, the programs or activities in those buildings must be made accessible.
Private school entities, including those with religious affiliation, that receive federal funding are also required to comply with Section 504 and DOE Title 34, but because they are private (not government) ADA Title III applies to them. Private entities that use their facilities in such a way that the public can have access to the facility, such as fund raisers, athletic events, concerts, parent’s day, visitor’s day, etc., will also have to comply with the ADA for those areas of the facilities that are open to the public.
If the sorority or fraternity facility is not owned or operated by the university and will not be owned or operated by it in the foreseeable future, the facility may be exempt from ADA and FHA coverage. Even if the facility would otherwise fit into one of the categories of places of public accommodation shown above, it is exempt from ADA Title III and FHA coverage if it is a private club. Whether a particular facility is a private club is a case-by-case determination, based on a variety of factors that have been recognized by courts. Some of the factors to be considered in such a determination are the following:
1. whether the club is highly selective in choosing members;
2. whether the club membership exercises a high degree of control over the establishment's operations;
3. whether the organization has historically been intended to be a private club;
4. the degree to which the establishment is opened up to non-members;
5. the purpose of the club's existence;
6. the breadth of the club's advertising for members;
7. whether the club is non-profit;
8. the degree to which the club observes formalities;
9. whether substantial membership fees are charged;
10. the degree to which the club receives public funding; and
11. whether the club was created or is being used to avoid compliance with a civil rights act.
As shown above, being qualified as a private club and maintaining that qualification requires strict adherence to a long list of requirements. But even if an organization is qualified as a private club, it may still be covered by ADA Title II or Title III to the extent that they open their facilities to the general public for a purpose that falls within one or more of the categories of places of public accommodation discussed earlier. For example, if a private club rents space to a public accommodation such as a day care center that is open to the general public, the private club would lose its ADA and/or FHA exemption, but only in relation to the place of public accommodation. The club would be covered by Title III as the day care center’s landlord. The club’s obligations might include things like improving structural access in existing spaces used by the day care center.
For a sorority or fraternity at a public university, where the sorority or fraternity owns the house and the ground it is built on, if the sorority or fraternity hosts events that are open to persons other than the sorority or fraternity members and their guests, the sorority or fraternity must make accessible the public areas during those events. The more often such public events occur, the higher the obligation to make the publicly used areas accessible. If, for example, only one event in several years is open to the general public, a temporary ramp may be sufficient to make the area accessible, while, if the sorority or fraternity hosts several such events during the course of a year, it may be obligated to construct a permanent ramp.
Typically, the ADA requires accessibility from the primary function area that is open to the public, such as a gathering room for a lecture, seminar, wedding, party, etc., all the way back to the site arrival point(s), which could include parking, passenger drop offs, and bus stops. This includes the route between the primary function area and the site arrival points. This route could include sidewalks, entrances to the facility, restrooms, water fountains, and other elements along the route that are available to sorority members and the public.
If a sorority or fraternity facility is judged not to be a private club, then the facility will likely have to satisfy the ADA, FHA, Section 504, and/or DOE Title 34.
SUMMARY: Whether or not a sorority or fraternity facility has to comply with accessibility requirements is a complicated issue. To determine if the ADA, FHA, Section 504, or DOE Title 34 apply to a sorority or fraternity facility, use the following checklist:
Is the facility owned completely by the fraternity or sorority including the site? Yes/No
Is the fraternity or sorority highly selective in choosing members? Yes/No
Does the sorority or fraternity exercise a high degree of control over the establishment's operations? Yes/No
Has the sorority or fraternity historically intended to be a private club? Yes/No
Does the sorority or fraternity advertise for membership within the University only? Yes/No
Has the purpose of this organization remained the same since conception? Yes/No
Does the sorority or fraternity have and enforce formalities? Yes/No
Is the sorority or fraternity a non-profit organization registered with the State? Yes/No
Does the organization charge its members substantial membership fees? Yes/No
Does the organization only allow in members and their guests? Yes/No
Does the sorority or fraternity not receive federal assistance, either directly or indirectly? Yes/No
Does the sorority or fraternity facility not offer any programs, goods, or services as a public accommodation? Yes/No
Is the sorority or fraternity facility not open to the public periodically throughout the year for such activities as parties, graduation ceremonies or celebrations, weddings, pledge week, seminars, etc.? Yes/No
If the answer to all the questions above is YES, then this facility probably qualifies as a private club and does not have to comply with the ADA, FHA, Section 504, or DOE Title 34, except when/if the facility is open to the public. If the answer to any of the questions above is NO, then this facility would have to be accessible as defined by the ADA. FHA, Section 504, and/or DOE Title 34.
Clearly there are many ways that a sorority or fraternity facility may not qualify as a private club and would have to comply with accessibility requirements. Looking beyond all these requirements, should the organization wish to improve the accessibility of there facility, simply to follow a philosophy or policy of inclusion, applying the principles of the ADA and/or FHA to the facility would be an excellent way to accomplish that. Many religious facilities such as Churches, which are also exempt from most accessibility requirements, have chosen to do this as well. They understand that making their facilities (and websites) more accessible will better serve their congregation, employees, and their visitors. Likewise, making your facilities (and websites) more inclusive can also better serve your membership, employees, and visitors.
Finally, it is important to remember that the ADA and FHA are discrimination laws, not building codes. Compliance with the ADA and FHA, where applicable, is mandatory.
……………………………………………………………………………………………………………………………………………………………………….