Magnet school entrance criteria excluding 504 students okay says 9th Circuit

At the end of a decision regarding whether nominal damages can be awarded under IDEA, the 9th Circuit held they cannot, the Court then went on to address a counter-claim brought by the parent. In this claim, she asserted that the district court improperly dismissed her Rehabilitation Act Section 504 and ADA monetary relief claims which were based upon the admissions policy of the school district’s magnet high schools. The Court upheld the district’s court decision, and that monetary relief was not appropriate here.

aIn Oman v. Portland Public Schools, the Court began be quoting the direct language of Section 504, “[n]o other-wise qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the participation”  in a program or activity receiving federal financial assistance, 29 U.S.C. § 794, or a public entity, 42 U.S.C. § 12132. These statutes provide a private cause of action in certain circumstances.The court went on to note that under very limited circumstances, ADA and Section 504 may provide a cause of action for failure of public school to provide a free and appropriate public education (FAPE).

In analyzing whether such a claim existed under the circumstances of this case, the Court quoted Se. Cmty. Coll. v. Davis,

“Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate.”

Rather, schools may not exclude a person who is “otherwise qualified” based upon their disability. For a student to be qualified, an applicant must be able to “meet all of a program’s requirements in spite of his handicap.” In it’s holding the Court stated,

we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, we extend judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.

Noting that here the requirement which was keeping the plaintiff’s son from attending the school was a threshold that to be admitted students had to be able to write at a minimum of an eighth grade level.


Elementary students suspended based on sexual charges

Child convict

Because of a case I have been working on, I have recently been looking into young children being suspended and or expelled from schools based on charges that they broke school rules with regard to sexual behavior. To this mix is the story coming out of Aurora, Colorado, involving a lively young boy who has been suspended for the “sexual harassment” of one of his female students. What sort of harassing behavior did the boy engage in? He was found to have been singing LMFAO’s song, “I’m sexy and I know it.” While school officials assert that the boy was singing the song to a girl, the boy’s mothers states that he was simply singing in the lunch line. My question is, “Does it matter?”

I would argue that even if the boy was singing the song to the little girl, his actions do not constitute sexual harassment. According to Equal Rights Advocates, there are two types of sexual harassment that occur in schools. The first is quid pro quo. This occurs where a person in authority offers a student some advantage in exchange for sexual favors, i.e. if you sleep with me, I’ll make sure you make the cheer-leading team. There is certainly no argument that this occurred between the young Colorado student and the female to whom school officials assert he crooned his song.

The second type of sexual harassment is hostile environment. This occurs where due to unwanted comments, touching, or gestures, a student is prevented from benefiting from their education. It is important to note that sexual harassment is perceived through the eyes of the person receiving the message, not the person who delivered it. Further, this type of harassment is almost always on-going. It occurs over an extended stretch of time. The exception to this is egregious examples of sexual harassment such as sexual battery or the like.

Here, once again, the facts do not support this six year-old being suspended. First, it is hard to imagine that the girl who was being serenaded, if you believe school officials, had her education experience so tainted that she was unable to benefit from instruction. Secondly, although I do not have access to all the facts, I find it difficult to believe that the young girl even perceived the song as a sexual overture. Such a thought is not in the nature of young children of this age.

School officials need to be mindful that the adult context of sexual offenses does not translate well at the elementary school level. Another California case illustrating this trend occurred in Hercules, California where at Port Lupine Elementary School, a first grader was suspended for sexual assault when, allegedly, his hand grazed the other boys private areas during a game of tag. The parent of the suspended child posted about it on school law blog and a massive uproar ensued, and the school eventually backed down.

It is important to note that the education code that defines what sexual battery is refers to specific sections of the California Penal Code. In order for a child to guilty of sexual battery, they must have committed one of five VERY serious crimes.(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.


(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.


Section 261 is the law regarding forcible rape. Section 288 is a lewd or lascivious act against a child. Section 266c is obtaining sex through false pretenses of by threat. Section 289 is forcible penetration with a foreign object. Section 243 is sexual battery. It is important to note that nearly all the statutes include a requirement that the action must have been undertaken for the purpose of sexual gratification, which at most ages of elementary school students is simply not possible. Generally, it is acknowledged that a person must have begun puberty to possess such an intent.

If your child has been suspended and or is up for expulsion due to a sexually related offense, it is important for you to protect your child’s rights. Having a suspension or expulsion for sexual violence or harassment on your child’s academic record can have far reaching consequences. Please contact The Law Office of Gregory R. Branch if your child is facing such a disciplinary action.


California Student Attendance Review Boards

California students are required by law to attend school between the ages of six and eighteen. Children who are sixteen or seventeen and who have either graduated from high school or passed the California High School Equivalency Exam can be out of school if they obtain parent permission.  School attendance is a serious issue. Children who miss school frequently are far more likely to fail, drop out, and commit crime. Because of this, in 1974, California’s legislature created Student Attendance Review Boards (SARB).

California Education Code (EC) Section 48320 is intended to allow enhanced enforcement of the state’s compulsory education laws Further, it attempts to keep chronically truant students or those with behavior problems from entering the juvenile justice system. The companion law, EC Section 48321, provides several organizational structures for SARBs at the local and county level to create a safety net for students with persistent attendance or behavior problems. The goals SARB is to have students stay in school and obtain an education. When the SARB process does not work though, SARB has to the authority to Although the goal of SARBs is to keep students in school and provide them with a meaningful educational experience, SARBs do have the power, when necessary, to require students and their guardians/parents to go to court.

Parents who are called before a SARB board should not take the experience lightly. While the goals of SARB are admirable, it sometimes is not understanding of the plight of parents who have children with special needs. Parents called to SARB hearing who really feel that there are legitimate reasons why their child is missing school are advised to contact my office, The Law Office of Gregory R. Branch. We can represent you at SARB and assist you in ensuring that your child’s rights are supported.