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Boy Scout with Downs Syndrome article

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Yes, and BSA isn’t a public school program so they absolutely don’t apply to BSA. BSA falls under ADA. ADA requires “reasonable†accommodations.

 

I am not sure they actually fall under the scope of the ADA. It gets a little confusing as the BSA claims to be private when it suits them but also wants to be treated like a public organization.

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I would assume that community groups using a school space are paying for it. I have rented school rooms for a variety of political, youth and community groups. We paid a fee and were certainly not covered by 504. A church can rent a high school gym, doesn’t make the church subject to all of the provisions of the fair labor standards.

 

Correct.  I am involved with a sports group that rents public facilities via contract, and we frequently run into people wanting to challenge a decision under 504 or Title IX.  Usually those wouldn't be applicable anyway, but the issue is closed completely as we are 100% private.

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I am not sure they actually fall under the scope of the ADA. It gets a little confusing as the BSA claims to be private when it suits them but also wants to be treated like a public organization.

 

This is my understanding of the ADA:

 

Private/public isn't relevant to ADA. Requirements for compliance are based solely on the size of the employer and apply to for profit, not for profit and government organizations with fifteen or more employees. The ADA is very specific when it comes to accommodations of physical space and very general when it comes to programming accommodations. 

 

This is all ADA says regarding access to programs such as BSA: 

 

  • (b) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this subpart, a public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different.

and

 

§ 36.302 Modifications in policies, practices, or procedures.
  • (a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

and

 

 36.303 Auxiliary aids and services.
  • (a) General. A public accommodation 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, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

 

https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

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I would assume that community groups using a school space are paying for it. I have rented school rooms for a variety of political, youth and community groups. We paid a fee and were certainly not covered by 504. A church can rent a high school gym, doesn’t make the church subject to all of the provisions of the fair labor standards.

 

In our area, after school programs like scouts don't pay, or at least they don't pay market rents.  It's possible that the law is different for an organization that contracts at a market rate. 

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This is my understanding of the ADA:

 

Private/public isn't relevant to ADA. Requirements for compliance are based solely on the size of the employer and apply to for profit, not for profit and government organizations with fifteen or more employees. The ADA is very specific when it comes to accommodations of physical space and very general when it comes to programming accommodations. 

 

This is all ADA says regarding access to programs such as BSA: 

 

  • (b) Opportunity to participate. Notwithstanding the existence of separate or different programs or activities provided in accordance with this subpart, a public accommodation shall not deny an individual with a disability an opportunity to participate in such programs or activities that are not separate or different.

and

 

§ 36.302 Modifications in policies, practices, or procedures.
  • (a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

and

 

 36.303 Auxiliary aids and services.
  • (a) General. A public accommodation 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, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

 

https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

 

Actually it is a bit trickier than that, and yes, whether an organization (and associated facilities, if any) is truly private can (not always) matter, especially when it is an organization based on membership.  The Boy Scouts are a nonprofit volunteer organization and has generally been held to not be a public accommodation.

Title III:

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities 

This title prohibits private places of public accommodation from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on.  This title sets the minimum standards for accessibility for alterations and new construction of facilities. It also requires public accommodations to remove barriers in existing buildings where it is easy to do so without much difficulty or expense.  This title directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. It also requires that they take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities.  This title is regulated and enforced by the U.S. Department of Justice.

https://adata.org/learn-about-ada

 

 

 

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I've been checking the local papers and news stations, following this story, because we are also in the Utah National Parks Council, and my aspie son is also in scouts.  (I'm a den leader in cub scouts.)

 

It's the Associated Press who is reporting that "the national organization voided every merit badge he had earned," not the family.  In their lawsuit, they are suing only "for blocking his son from becoming an Eagle Scout and revoking some of his merit badges."  I saw one quote this morning (which I can't find again) where the dad is supposed to have said that National "effectively took away" his badges, which isn't the same as actually taking them away.

 

Revoking them doesn't even seem likely logistically.  National got back to him in 24 hours.  There's no way they challenged all 22 badges in 24 hours.  That would require tracking down and interviewing all 22 Merit Badge counselors, many of whom probably aren't in scouts anymore.  (Otherwise, how would they even know he hadn't done every badge as written?)

 

National says they did not take away any badges in their newsroom post.  They also said it in a eZine for adult BSA leaders that I got in my inbox just this morning:  "Logan is still registered as a Boy Scout, and the merit badges he earned are still listed in the BSA’s advancement records."

 

What I suspect really happened is that he was missing some of the badges required on the eagle path, as outlined in Margaret's post.  (For instance, maybe he hasn't done Swimming or Hiking or Cycling, and has instead substituted something else from the required list, but from an unrelated category.  National probably told them those substitutions don't count as required badges (they'd still count as electives), and Dad probably took that as saying they were revoking them.

 

When his dad was interviewed on KSL, Utah's main news radio station, what he said there was, â€œWhen National (BSA) was contacted about possible alternates, we were told that for Star Life Eagle Ranks, there are no alternates. The young man must do the requirements as written, including leadership responsibilities.â€

 

I can see Mom and Dad taking that as meaning you must do each Merit Badge exactly as written, but National actually meaning you have to meet all the rank requirements.

 

From the eZine:

 

Logan’s story raised some questions about this line from Page 79 of the Guide to Advancement:

“Alternatives are not available for the Star, Life, and Eagle rank requirements. Scouts may request approval for alternative merit badges, but the other requirements for those three ranks must be fulfilled as written.â€

 

That's a whole different thing, having nothing to do with Merit Badges.  I know, because my Aspie son is heading for Star, that one of the requirements for that rank is serving for four months in some kind of youth leadership position, such as as a Den Chief, or Patrol Leader.  The wording of what National is supposed to have told this boy's dad suggests he hasn't met the leadership requirement.

 
 

,

The Scout would be able (most likely) to earn the Sports mb. However, it is not an Eagle-required mb, so alternative requirements are not available. I could see how the Sports mb could be earned doing adaptive skiing whilst still following the requirements. However the sport must be okayed by the mb counselor, NOT mom and dad, in advance. There are 2-3 Eagle-required mb options in several categories. BECAUSE they are Eagle-requireds, there are alternative requirements IF the Scout has been identified as needing those. So, the boy can do Swimming OR Hiking OR Cycling. So, a boy who could not pass the Swimming mb, could hand cycle (for example). If a boy earns all three of those, they roll to electives. Only the Eagle-requireds have alternative requirements. If a boy is terrified of dogs (for example) there are not alternative requirements to get around taking care of the dog. He simply chooses another mb to do as an elective. 
 
Here is the list of Eagle-required mbs:

All of those have alternative requirements allowed.

 

Edited by Maus

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Of course, none of us know the whole story.

 

I think that it's important to note that every individual with Down syndrome is unique, and the accommodations they need are unique as well.  So, the fact that a set of accommodations has worked for one person with Down syndrome, or many people with Down syndrome, doesn't tell us whether or not that set of accommodations is appropriate for Logan.  

 

For example, people have mentioned hand cycles as the way that BSA accommodates people with physical disabilities, but a hand cycle is an accommodation that works for a very small subset of people with physical disabilities.  I can't think of a single student that I've worked with who would benefit from that particular accommodation, and I have worked with many students with physical disabilities.  

 

As far as your argument that not everyone chooses to get Eagle, or follows through and gets it, legally there's a distinction between not getting something because you made a choice, and not getting it because it's inaccessible or because you're discriminated against for your membership in a protected class.  

 

A hand cycle is not 'the' way, its 'a' way. In this case I described, its what the lad's physicians  recommended due to his particular disability, after the Scoutmaster showed the mom several possibilities that Paraolympians used.  Its not up to the volunters or paid employees of BSA to interpret the medical needs..they can't replace the lad's physician team.  The volunteers in the lad's unit may suggest ideas for the lad and parent to discuss, but its up to the family to decide what's appropriate.  A different scout may need a three wheeler or a quad, or different gearing..up to them to figure out what works for the area they live in, just as it is to a family of a nondisabled scout.  The BSA is not a public school .. it doesn't have teams at the local level with lists of accomodations, equipment to loan,  and expert PT and OT available for free. The family has to do some of the legwork, and in cases like this one, where no one local is able to make suggestions,  it sounds as if National may be able to offer some.  

Edited by Heigh Ho
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It was me who used the hand cycle as an example. I used it because that WAS one way one of our Scouts could participate. You're right--BSA volunteers are not in the position to make those choices. Those choices are made with the boy, the parents, the doctor, and the Council, all working together. 

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