SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA AND
BLOOMINGTON MONTESSORI SCHOOL
U.S. DEPARTMENT OF JUSTICE DOJ # 202-26S-230

1. The parties to this Settlement Agreement (“Agreement”) are the United States of American and Bloomington Montessori School, located in Bloomington, Indiana.
2. This matter was initiated by a complaint, D.J. No. 202-26S-230, filed with the United States Department of Justice (the “United States”) against Bloomington Montessori School alleging violations of Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12181-12189, and its implementing regulation 28 CFR Part 36.

BACKGROUND

3. The Complainants, [redacted], are the parents of E.M., their 10-year old daughter who has selective mutism and anxiety issues. E.M. was a student at Bloomington Montessori School for six years, starting there in preschool at age 3.  During the 2017-2018 school year, a private psychologist diagnosed E.M. with selective mutism. The Complainants and school officials met and developed a 504 accommodation plan for E.M. that included extra time for tests and homework, non-verbal cues for the classroom and help with peer and anxiety issues.  The Complainants were meeting with school officials on a quarterly basis to discuss E.M.’s progress. They were scheduled to meet in February 2018, when the Complainants suffered a death in the family out of state, and asked to reschedule. On February 21, 2018, the Complainants received a letter signed by the Head of School, President of the School Board, and E.M.’s lead teacher, stating that Bloomington Montessori School would not renew E.M.’s enrollment for the 2018-2019 school year. The letter states that the school “is not a good fit for your family” based on “interpretation of [E.M.’s] 504 Plan expected to negate the philosophy and mission of our school” …  and would “create a fundamentally different environment” at the school.¹  The Complainants allege that this letter, and their interactions with the school, indicate that E.M. would not be accepted at Bloomington Montessori School because of her disability.
4. The Bloomington Montessori School is an independent, private, co-educational Montessori school, serving children from preschool through sixth grade, located in Bloomington, Indiana.
5. The Bloomington Montessori School is a place of public accommodation within the meaning of 42 U.S.C.§12181(7).
6.  The United States is authorized to investigate alleged violations of Title III of the ADA, and to bring a civil action in federal court if the United States is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b). Preventing discrimination in private school settings, is an issue of general public importance.
7. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a).
8. The ADA also prohibits a public accommodation from subjecting an individual on the basis of disability to a denial of the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). Failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities is also discriminatory unless a public accommodation can demonstrate that making the modifications would constitute a fundamental alteration to the nature of its goods and services. 42 U.S.C. § 12182(b)(2)(A)(ii).
9. Bloomington Montessori School denies that it violated Title III of the ADA and claims that at all times it acted consistently with the ADA.
10. The United States and Bloomington Montessori School agree that it is in the Parties’ best interests, and the United States believes it is in the public interest, to fully and finally resolve this matter on mutually agreeable terms without resort to litigation. The Parties hereby agree and stipulate to all aspects of this Agreement in resolution of this Complaint against Bloomington Montessori School.

TERMS OF AGREEMENT

11. General Obligations: Bloomington Montessori School agrees that it will not discriminate on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201. Specifically:
1. Bloomington Montessori School shall not deny an individual or class of individuals on the basis of disability the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the School, pursuant to 42 U.S.C. § 12182(b)(1)(A)(i) and 28 C.F.R. § 36.202;
2. Bloomington Montessori School shall make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless they can demonstrate that making the alterations would fundamentally alter the nature of its goods, services, facilities, privileges, advantages or accommodations, pursuant to 42 U.S.C. § 12182(b)(2)(A)(ii) and 28 C.F.R. § 36.302;
3. Bloomington Montessori School shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, except when it can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense pursuant to 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303; and
4. Bloomington Montessori School shall not use eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, pursuant to 42 U.S.C. § 12182(b)(2)(A)(i), and implementing regulation at 28 C.F.R. § 36.301(a).
12. Establishment of Disability Nondiscrimination Policy. Within thirty (30) days of the entry of this Agreement, Bloomington Montessori School shall adopt a Disability Nondiscrimination Policy that will expressly provide that:
1. Bloomington Montessori School does not discriminate against any individual on the basis of disability, including against applicants or members of their families, students or members of their families.
2. Applicants and students with disabilities and members of their families have an equal opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, and accommodations provided by Bloomington Montessori School.
3. Bloomington Montessori School may not deny admission to or disenroll a child on the basis of the child’s disability, or because Bloomington Montessori School regards the child as having a disability.
4. Bloomington Montessori School will make reasonable modifications to its policies, practices and procedures when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.
5. Requests for reasonable modifications beyond the scope of daily classroom accommodations may be directed to Bloomington Montessori School’s Head of School, either formally (as in writing) or informally (as in orally) and will be addressed in collaboration with the Director of Montessori Programs within three (3) business days.
6. Bloomington Montessori School will not make decisions about admission, continued enrollment or reenrollment, or about needs for reasonable modifications, based on assumptions, myths or stereotypes about people with disabilities. Before making any enrollment decision where disability or behaviors associated with disability is considered as part of the decision-making process,  Bloomington Montessori School administrators will engage in an interactive process that includes consultation with or consideration  of information provided by the following individuals: the child’s parents or guardians, current teacher(s), anticipated teacher(s), and any persons providing support, therapy or other services to the child, to determine whether reasonable modifications to Bloomington Montessori School policies, practices and procedures could allow the child to attend Bloomington Montessori School;
7. If Bloomington Montessori School denies admission, continued enrollment or reenrollment to a child with a disability, Bloomington Montessori School shall set forth in writing its reasons for the denial, including the names and titles of all persons consulted, any modifications proposed or considered, and the reasons, if any, why Bloomington Montessori School decided reasonable modifications were not available or would not allow the child to attend Bloomington Montessori School.
13. The Bloomington Montessori School will not retaliate against, or coerce in any way any person trying to exercise the rights of any person under this Agreement.
14. Publication/Dissemination of Disability Nondiscrimination Policy. The Disability Nondiscrimination Policy established pursuant to the immediately preceding paragraph shall be published/disseminated as follows:
1. Within thirty-five (35) business days of the entry of this Agreement, the Disability Nondiscrimination Policy shall be included in all Bloomington Montessori School handbooks (in both hard copy and online versions).
2. Within thirty-five (35) business days of the entry of this Agreement, the full text of the Disability Nondiscrimination Policy shall be accessible from and displayed on the homepage of its website http://bloomingtonmontessori.org/. 
15. ADA Training.  Bloomington Montessori School will develop a training program (“ADA Training”) that shall be provided to the individuals identified in this paragraph within 60 days of entry of this Agreement and annually thereafter for the term of this Agreement.  Bloomington Montessori School shall provide ADA Training to 1) all individuals who, on behalf of Bloomington Montessori School, provide any instruction or care to any Bloomington Montessori School student; 2) all Bloomington Montessori School administrators, and all persons involved in providing office/professional support to Bloomington Montessori School on school property; and 3) the Bloomington Montessori School Board of Trustees.
1. The ADA Training shall address:
1. the requirements of Title III of the ADA in the private school context;
2. the existence and general content of this Agreement and a description of where training participants may access a copy of this Agreement;
3. Bloomington Montessori School’s nondiscrimination obligations under the ADA, including specifically the “General Obligations” outlined at Paragraph 11 of this Agreement;
4. the reporting obligations under Paragraph 13 of this Agreement; and
5. the procedure for requests for disability-related reasonable modifications.
2. The ADA Training shall be conducted by an individual with substantive knowledge of the ADA and who is not an employee of Bloomington Montessori School.  
16.  Reporting.
1. Initial Regular Report:  One hundred-twenty (120) calendar days following the entry of this Agreement, Bloomington Montessori School shall submit a report to the Department confirming its implementation of the policies referenced in Paragraph 12 (“Establishment of Disability Nondiscrimination Policy”), Paragraph 13 (“Publication/Dissemination of Disability Nondiscrimination Policy”), and its fulfillment to that date of the requirements of Paragraph 14 (“ADA Training”). Bloomington Montessori School shall provide the Department with the attendance logs maintained pursuant to the ADA Training that it will have conducted pursuant to this Agreement by the time of the Initial Regular Report;
2. Subsequent Regular Reports:  For the Term of this Agreement, every year on the anniversary of the due date of the First Regular Report, Bloomington Montessori School shall submit a Subsequent Regular Report to the Department regarding its compliance with this Agreement. The report shall include, for the period subsequent to its immediately prior report to the Department, the following:
1. All dates of Bloomington Montessori School’s ADA Training conducted pursuant to this Agreement;
2. All attendance logs associated with the ADA Training conducted pursuant to this Agreement; and
3. Immediate Reports:  During the Term of this Agreement, Bloomington Montessori School shall notify the United States within fifteen (15) business days of Bloomington Montessori School’s:
1. Knowledge of any lawsuit, written complaint, charge, or other specific allegation made to Bloomington Montessori School Head of School, Administrator, Director of Montessori Curriculum and Instruction, teachers, or Board of Directors that Bloomington Montessori School has engaged in disability-based discrimination and/or violated the ADA.  Such notice will include, at a minimum, a description of the nature of the allegation, the name(s) of the individual(s) bringing the allegation, and all documentation possessed by Bloomington Montessori School relevant to the allegation.
4. Reports and any other information required pursuant to this Agreement shall be delivered to the undersigned counsel via electronic mail at kelly.rota@usdoj.gov.
17.  Within thirty (30) days of the effective date of this Agreement, the Bloomington Montessori School will send a check or money order in the amount of $2,500.00 payable to the “United States Treasury” as a civil penalty pursuant to 42 U.S.C. §12188(b)(2)(C) and 28 CFR 36.504(a)(3). A representative from Bloomington Montessori School shall deliver the check or money order, via Federal Express, to counsel for the United States within thirty (30) business days of the effective date of this Settlement. This check shall be sent via overnight courier delivery to: Kelly Rota, Assistant United States Attorney, 10 West Market Street, Indianapolis, IN 46204.

ENFORCEMENT AND IMPLEMENTATION

18. This Agreement fully and finally resolves any and all of the allegations by the complainant and the United States in this case. It is not intended to remedy any other potential violations of the ADA by Bloomington Montessori School.
19. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the Bloomington Montessori School and the parties will attempt to resolve the concerns in good faith. The United States will give the Bloomington Montessori School thirty (30) days from the date it notifies the Bloomington Montessori School of any breach of this Agreement to cure that breach, before instituting any court action. If the parties are unable to reach a satisfactory resolution within that period, the United States may bring a civil action in federal district court to enforce this Agreement or Title III, and may in such action seek any relief available under law.
20. Notices: All notices reports, or other such documents required by this Agreement shall be sent by United States Mail to the following address: Kelly Rota, Assistant United States Attorney, 10 West Market Street, Suite 2100, Indianapolis, IN 46204.
21. In consideration for the terms set forth above, the United States will not institute a civil action alleging violations of the ADA based on the Department of Justice Complaint DJ No. 202-26S-230, except as provided in paragraph 18, above.
22. Failure by the United States to enforce this entire Agreement or any of its provisions shall not be construed as a waiver of its right to enforce other provisions of the Agreement.
23. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect.
24. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement and does not affect the Bloomington Montessori School's continuing responsibility to comply with all aspects of the ADA.
25. This Agreement shall be binding on the Bloomington Montessori School, its agents and employees. In the event the Bloomington Montessori School seeks to transfer or assign all or part of its interest in any facility covered by this Agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale the Bloomington Montessori School shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
26. This Agreement constitutes the entire agreement between the United States and the Bloomington Montessori School on the matters raised in the Agreement and no other statement, promise or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including its attachments, shall be enforceable.
27. A signatory to this document in a representative capacity for either party represents that he or she is authorized to bind that party to this Agreement.
28. The effective date of this Agreement is the date of the last signature below.
29. The duration of this Agreement will be three (3) years from the effective date.