by Jennifer Skulski, CPSI
While the factions of the ASTM F08.63 Subcommittee on Playground Surfaces were debating the merits of a field test to determine the firmness and stability of playground surfaces as they relate to accessibility, the Leander Independent School District (LISD) was negotiating an out of court settlement regarding one of their 22 elementary school playgrounds.
In December 2009, Advocacy Inc
., the disability protection and advocacy organization for the state of Texas, filed an official complaint with the U.S. Department of Education Office of Civil Rights alleging the playground at Block House Creek Elementary School was not physically accessible. The complaint was filed on behalf of a second grader at the school and all the students with mobility impairments in the school district. The student, who was 8-years old at the time the complaint was filed, has cerebral palsy and uses a walker to accommodate her mobility impairment. The complaint alleged the playground did not have accessible play components and the playground surfaces, described as “soft, loose wood mulch and pea gravel," were not accessible.
The Advocacy Inc. complaint to DOE serves as a model, clearly laying out the legal analysis and claiming discrimination, not only under the Americans with Disabilities Act, but under the “program access” standards in Title II and Section 504 of the Rehabilitation Act.
LISD entered into a settlement agreement in 2010 with Advocacy Inc. regarding Block House Creek Elementary School. While terms of the settlement agreement are confidential, it is evident by visiting the playground there are now additional pieces of ground level playground equipment and part of the loose fill surface has been replaced by a unitary rubber surface system.
When asked about the complaint, Advocacy Inc. Senior Attorney, Steven Elliot, commented to the effect that the school believed they had purchased a wood mulch playground surface material that met the 2010 ADA Standards. “However, as we began discussions, it became pretty clear that they did not have the capacity to maintain the loose surface material,” commented Elliot.
Where does the American Society of Testing and Materials (ASTM) come in?
The new 2010 ADA Standards, developed by the U.S. Access Board and adopted now as enforceable by the U.S. Department of Justice, reference the ASTM F1951-99 Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment. The new standards require that playground surfaces used on the accessible route meet the ASTM F1951-99. The standard was originally written in 1998-99 as a laboratory procedure and is quite costly, as much as $3,000 per tested surface. Since 2004, staff from the U.S. Access Board, Beneficial Designs and the National Center on Accessibility have been advocating to the ASTM F08.63 Playground Surface Subcommittee to update the test protocol to allow for a field test procedure that would enable playground owners to check the firmness and stability of their own playground surfaces and, in effect, ensure they could be maintained as accessible.
The balloting process to update the ASTM F1951-99 standard has been a protracted one, going on for more than six years and often dividing the subcommittee among differing factions. At the November 2010 ASTM meeting in San Antonio, the ballot for a field test method on the firmness and stability of playground surfaces was withdrawn from the F08.63 Playground Surface Subcommittee consideration indefinitely.
This begs the greater question, how will the U.S. Department of Justice enforce the ASTM F1951-99 referenced standard when investigating ADA-related playground complaints?