Press Release

AGREEMENT BETWEEN THE UNITED STATES OF AMERICA
AND THE PEA RIDGE SCHOOL DISTRICT (PEA RIDGE, ARKANSAS)
UNDER THE AMERICANS WITH DISABILITIES ACT

BACKGROUND

1. The parties to this Agreement (“Agreement”) are the United States of America (“United States”) and Pea Ridge School District (“PRSD”) (collectively, “the Parties”).
2. PRSD is a public school district located in Benton County, Arkansas.  PRSD is a public entity within the meaning of the ADA, 42 U.S.C. § 12131(1)(B), and therefore is subject to Title II of the ADA, 42 U.S.C. §§ 12131-34, as amended (“Title II”) and its implementing regulation, 28 C.F.R. Part 35.
3. The United States Department of Justice (“Department”) is responsible for administering and enforcing Title II and its implementing regulation, 28 C.F.R. Part 35.
4. The Agreement arises out of allegations by the United States that PRSD discriminated against three students who PRSD believed may have HIV, in violation of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12101 et seq.  PRSD removed the children from its schools based on documents in its possession that referenced a family member’s HIV status.  PRSD stated that the students would “not be allowed back into the school district until the proper HIV testing is done and the results returned to the Superintendent’s office.”  The students were excluded from PRSD on September 12, 2013.  They were allowed to re-enter PRSD on September 17, 2013.  PRSD based its decision to remove the students on the advice of its then-counsel.
5. The United States and PRSD agree that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to fully and finally resolve this matter on mutually agreeable terms without resorting to protracted litigation. 

TITLE II OBLIGATIONS AND ACTIONS TO BE TAKEN BY PRSD

6. PRSD shall comply with the requirements of Title II of the ADA, 42 U.S.C. §§ 12131-34, as amended, and its implementing regulation, 28 C.F.R. Part 35. Title II mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a). The definition of disability includes those who are "regarded as" having a disability. 42 U.S.C. § 12102(3)(A); 28 C.F.R. § 35.104. HIV is a disability. 28 C.F.R. §§ 35.104, 35.108. The ADA's prohibition on discrimination requires that:
   1. PRSD, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability, deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit or service. 28 C.F.R. § 35.130(b)(1)(i);
   2. PRSD may not, directly or through contractual arrangements, utilize criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability or that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of PRSD's program with respect to individuals with disabilities. 28 C.F.R. § 35.130(b)(3)(i)-(ii);
   3. PRSD shall not impose or apply 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 service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. § 35.130(b)(3)(8); and
   4. PRSD shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual is known to have a relationship or association. 28 C.F.R. § 35.130(g);
7. Changes to Policies. Within thirty (30) calendar days of the Effective Date of this Agreement, PRSD shall amend its policies as set forth in subparts (a)-(c) of this paragraph and send the full text of the revised policies to the Department (to the attention of anne.langford@usdoj.gov and roberta.kirkendall@usdoj.gov or other person(s) subsequently specified by the Department) for its review and approval. PRSD further will ensure that all handbooks and similar materials ("collateral material") thereafter printed will reflect the revised policies, with such collateral material to be reprinted, at the latest, prior to the commencement of the PRSD 2017-2018 school year.
   1. PRSD shall not ask for any student's or prospective student's HIV test results.
   2. PRSD shall amend Policy 4.34 ("Communicable Diseases and Parasites") to incorporate the following language after the Policy's exemplar list of conditions that are covered by the Policy: "The Human Immunodeficiency Virus (HIV) is not considered to be a condition requiring a student's exclusion from school under this policy."
   3. PRSD shall adopt an "ADA/Non-Discrimination Policy" that documents the requirements of Title II of the ADA and its implementing regulation and that includes the following text: "The Pea Ridge School District does not discriminate against prospective students or students on the basis of disability, including HIV. All prospective students or students with disabilities, including HIV, have an equal opportunity to participate in or benefit from the services, programs, or activities provided by the Pea Ridge School District, including classroom instruction and extracurricular activities. Pursuant to the Americans with Disabilities Act (ADA), individuals who are regarded as disabled or who are associated with a person with a disability, including HIV, are covered by the ADA's protections. PRSD prohibits inquiries as to the HIV status of any prospective student or student as a precondition to the provision of PRSD's services, programs, or activities. PRSD also prohibits requests for the HIV results of any prospective student or student as a precondition to the provision of PRSD's services, programs, or activities." In addition to its publication/dissemination pursuant to the immediately following paragraph, this ADA/Non-Discrimination Policy shall appear, and remain for the Term of this Agreement, in a bullet point entitled "Nondiscrimination Policies" under the "District Policies" section of the PRSD website (currently, http://www.pearidgek12.com/policies.html).
8. Publication/Dissemination of Revised Policies. Within thirty (30) calendar days of the Department's approval of the revised policies submitted to the Department pursuant to the previous Paragraph, PRSD shall adopt and implement the approved policies and shall incorporate all revisions into the online versions of written materials and shall also incorporate the revisions approved pursuant to the previous paragraph in all hard copy versions of those documents that are used and/or distributed.
9. Training. Within ninety (90) calendar days of the Effective Date of this Agreement, PRSD will develop a training program ("ADA Training") that shall be provided to the individuals identified in this paragraph within one-hundred eighty (180) calendar days of the Effective Date of this Agreement and every year thereafter for the Term of this Agreement. PRSD shall provide ADA Training to 1) all PRSD employees who provide any school-based instruction (of either an educational or extracurricular nature) to any PRSD student, either during regular instructional time or after school (through official PRSD activities); and 2) all PRSD administrators (including, but not limited to, all PRSD school Principals and Assistant Principals).
   1. The ADA Training shall address:
      1. the requirements of Title II of the ADA, including the fact that individuals with HIV (including students and employees with HIV) are covered by the ADA's prohibition on discrimination;
      2. a general overview of the terms and obligations of this Agreement (PRSD will provide a copy of this Agreement to each training participant);
      3. the reporting obligations under Paragraph 10 of this Agreement; and
      4. PRSD's nondiscrimination obligations under the ADA, including specifically the "General Obligations" outlined at Paragraph 6 of this Agreement as well as the Changes to Policies outlined at Paragraph 7 of this Agreement.
   2. The ADA Training shall be conducted by an individual or individuals with substantive legal knowledge of the ADA and who is/are not an employee(s) of PRSD. The ADA Training shall be conducted live, with a group opportunity to pose questions to the individual(s) conducting the training at the conclusion of the training session.
   3. For persons who must receive ADA Training pursuant to this Agreement, but who did not receive training on a designated annual training date required under this Agreement (for instance, because they were on leave from PRSD or because they began their affiliation with PRSD subsequent to the training date), PRSD shall provide the ADA Training to such persons within sixty (60) calendar days after the individual's affiliation with PRSD in a position covered by the ADA Training or within sixty (60) calendar days of their return to PRSD (for instance, from leave). Any training provided under this subparagraph may either be provided live or via a video recording of a previous live session of the ADA Training. If the ADA Training is provided via a video recording, the trainer(s) meeting the requirements of the immediately preceding subparagraph shall be accessible to directly answer any questions a participant may have after viewing the video presentation.
   4. PRSD shall send via electronic mail to the Department (to the attention of anne.langford@usdoj.gov and roberta.kirkendall@usdoj.gov, or other person(s) subsequently specified by the Department) the proposed curriculum for the training, as well as the name(s), qualifications (including resume(s)), and contact information of the individual(s) who will conduct the training, no later than sixty (60) calendar days after the Effective Date of this Agreement. PRSD shall incorporate the Department's proposed changes to the training curriculum, which shall not be unreasonably withheld.
   5. For each session of the ADA Training conducted under this Agreement (including for each instance of the ADA Training conducted on a non-designated training date pursuant to subsection "c" of this paragraph), PRSD shall maintain attendance logs reflecting the date of the training, names and titles of attendees, and the attendees' signatures.
10. Reporting.
    1. Initial Regular Report: One hundred-ninety (190) calendar days following the Effective Date of this Agreement, PRSD shall submit a report to the Department confirming its implementation of the policies referenced in Paragraph 7 ("Changes to Policies") and Paragraph 8 ("Publication/Dissemination of Revised Policies"), as well as its fulfillment to that date of the requirements of Paragraph 9 ("Training"). PRSD 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, PRSD 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 PRSD's ADA Training conducted pursuant to this Agreement;
       2. All attendance logs associated with the ADA Training conducted pursuant to this Agreement; and
       3. Its continued fulfillment of the publication/dissemination obligations of Paragraph 7 ("Changes to Policies") and Paragraph 8 ("Publication/Dissemination of Revised Policies").
    3. Immediate Reports: During the Term of this Agreement, PRSD shall notify the United States within ten (10) calendar days of PRSD's:
       1. Decision to exclude from PRSD any student who PRSD knows or who PRSD suspects to have HIV.
       2. Knowledge of any lawsuit, written complaint, charge, or other allegation that PRSD has engaged in disability-based discrimination and/or violated the ADA with regard to any person with HIV or who PRSD suspects to have HIV. 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 PRSD relevant to the allegation.
    4. All reports required pursuant to this Agreement shall be delivered to the undersigned counsel via electronic mail at anne.langford@usdoj.gov and roberta.kirkendall@usdoj.gov, or other person(s) subsequently specified by the Department.
11. ADA Coordinator. PRSD shall designate an employee to coordinate all of PRSD's efforts to comply with and carry out PRSD's responsibilities under the ADA. These duties shall include involvement in reporting to the United States under the immediately preceding paragraph.

MONETARY RELIEF

12. Within ten (10) days of PRSD's receipt of a completed release attached hereto as Attachment A (on behalf of any student who, at the time of the signing of the release, is a minor) or Attachment B (to be used by any student who, at the time of the signing of the release, has reached eighteen [18] years of age and who, under law, can accept damages), PRSD agrees to pay and deliver $5,000 in damages to each of the three students who were excluded from PRSD on the basis of HIV (for a total of $15,000).

OTHER PROVISIONS

13. Effective Date. The effective date of this Agreement is the date of the last signature below.
14. Term. The duration of this Agreement will be three (3) years from the Effective Date.
15. Non-Waiver. Failure by the United States to enforce any provision of this Agreement shall not be construed as a waiver of its right to enforce any provisions of the Agreement.
16. Titles. Titles and other headings contained in this Agreement are included only for ease of reference and shall have no substantive effect.
17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. Facsimile or electronic signatures are acceptable.
18. Severability. 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.
19. Binding Nature of Agreement. This Agreement shall be binding upon PRSD, its agents and employees.
20. Authority. The signatories represent that they have the authority to bind the respective parties identified below to the terms of this Agreement.
21. Entire Agreement. This Agreement, including Attachments A and B, constitutes the entire agreement between the United States and PRSD on the matters raised herein and no other statement or promise 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.
22. Other Violations. This Agreement shall have no impact upon the rights or claims of any other individual not identified in this Agreement who has made, or may make, claims against PRSD for issues discussed herein. This Agreement is not intended to remedy any potential violations of the ADA or any other law, other than those specifically addressed by this Agreement. Nothing in this Agreement shall preclude the United States from filing a separate action under the ADA for any alleged violation not covered by this Agreement.
23. Continuing Responsibility. This Agreement does not affect PRSD's continuing responsibility to comply with all aspects of the ADA.

    By their signatures below, the Parties respectfully consent to the execution of all aspects of this Agreement.