OCR offers districts guidelines on inclusion for disabled students

Athletics are an important of an overall educational program. School athletic programs, both inter-mural and intramural offer students health and social benefits of great value. These benefits include socialization, improved teamwork and leadership skills. These benefits apply just as much to disabled student as typical students, if not more so. Unfortunately though, the United States Government Accountability Office found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

Based on these findings, the GAO recommended that the Office of Civil Rights clarify and communicate school district responsibilities under Section 504 regarding the provision of extracurricular activities. In it January 25, 2013, report, OCR undertook to do exactly that.

In what’s known as a Dear Colleague Letter, OCR laid out districts basic responsibilities under Section 504 and then applied those rights to the area of extracurricular activities.

Under this law, districts may not discriminate against individuals attempting to engage in extracurricular activities so long as they are “otherwise qualified.” Essentially, this means that a district must make reasonable accommodations to allow a disabled student to participate, but they need not alter the game or the skill requirements expected. For example, modifications that would give a disabled student a fundamental advantage are not required, but modifications to allow a student to participate are.

The letter lays out several scenarios and then analyzes whether the district response in the hypothetical scenario was appropriate. In the most informative example, a high school competitive swimmer was born with only one hand. Her times are competitive but she cannot meet the requirement of performing a two-hand wall touch. She petitions the league to allow her to use a one-hand touch during interscholastic meets. Under the OCR’s analysis, the district would be required to perform an individualized analysis to determine whether the requested modification was necessary for the student’s participation, and determine whether permitting it would fundamentally alter the nature of the activity. Her, modification is necessary for the student to participate.

An appropriate analysis would determine whether the requested modification alters an essential aspect of the sport or would give the student an unfair advantage over other swimmers. The analysis does not end there though. If the district determined the modification failed either prong, it would need to assess if other modifications existed that would allow the student to participate.

The report concludes that while districts cannot offer separate services that are unnecessarily separate, districts are encouraged to work with their community and athletic associations to develop broad opportunities to include students with disabilities in all extracurricular athletic activities. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities. The letter goes on to mention the creation of disability-specific team sports such as wheelchair basketball or wheelchair tennis.

If you feel that your child has been unfairly discriminated against in attempting to participate in extracurricular activities, please contact The Law Office of Gregory R. Branch for a consultation.

District not required to serve ADHD student attending private school

(January 16, 2013) A school district does not have an obligation to provide services to an ADHD child enrolled in a private religious school under current federal disability-rights law.

The United States Court of Appeals for the Fourth Circuit held that Baltimore City Public Schools had no obligation to provided special education services under Section 504 to an 8th grade ADHD student who attended a private Jewish school in Maryland.

D.L., the student around whom the law suit swirled, was diagnosed with ADHD and anxiety as a fifth grade student in 2007. Two years later, Baltimore City Board of School Commissioners (BCBSC) determined that while D.L. did not qualify for services under the Individuals with Disabilities Educational Act (IDEA), he was eligible under Section 504. Upon making this determination though, BCBSC notified D.L.’s parents that it could not provide the student services unless D.L. was enrolled in one of its schools. Since Maryland is a state that does not allow dual enrollment in a private and public school, D.L. would have to withdraw from his Yeshiva and enroll at the local public school.

D.L.’s parents challenged this decision, arguing that Section 504 creates an affirmative duty for school districts to provide services to eligible students enrolled in private schools. The parents’ arguments failed before a hearing officer so they filed suit in the United States District Court of Maryland. BCBSC filed a motion for summary judgment (a motion which basically says that even if D.L.’s parents were to prove all the facts they assert, they would still lose the case as a matter of law) and the parents filed a motion for partial summary judgment. The lower court granted BCBSC’s summary judgment motion and denied the parent’s partial summary judgment motion. The parents filed an appealed that decision to the U.S. Court of Appeals.

In the case, D.L. v. Baltimore City Board of School Commissioners, the parents argued two main points: 1) that Section 504 regulation mandate that BCBSC provide D.L. with a free and appropriate education (FAPE), and 2) that BCBSC’s requirement that the family enroll D.L. in a public school violates their constitutional rights under the First Amendment’s Freedom of Religion clause.

With regard to the first contention, the court recognized that the plain language of Section 504 leaves unclear whether public schools are required to provide services to students enrolled in private schools. 34 C.F.R. § 104.33(a) states in relevant part that districts must “provide each Section 504 eligible student within its jurisdiction with a [FAPE].” The parents contend this language means that public schools have a greater obligation that simply making such education available.

The court reasoned that while the plain language is ambiguous, that further clarification in Appendix A of the regulations where it states in relevant part, “[i]f . . . a recipient offers adequate services and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the outside services.” In looking at this, the court noted that while this shows that a district need not pay for services obtained outside the public school, it leaves open the question of whether such services can be obtained from the school.

Here, the court relied upon a clarification letter by the Department of Education entitled OCR Response to Veir Inquire Re: Various Matters which offers a direct clarification of the disputed regulation. The court noted that where a regulation is ambiguous, courts must grant deference to an agency’s interpretation of its own regulation. In the Vier letter, the DOE stated that “[w]here a district has offered an appropriate education, a district is not responsible under Section 504, for the provision of educational services to students not enrolled in the public education program based on the personal choice of the parent or guardian.” The court applied this language to hold that BCBSC had no responsibility to provide services to D.L. in his private school placement.

In reaching its holding, the court also rejected the parents’ arguments that Section 504’s language should be interpreted broadly since it is a remedial statute. While noting that turth of the parent’s contention that remedial statutes should be broadly construed, the court noted,

“The purpose of Section 504 does not, however, extend as far as Appellants [parents] assert that it should. Section 504 and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice.”

The court next tackled the First Amendment issues raised by the suit. The parents’ suit tried to persuade the court that the Supreme Court’s rulings in Pierce, 268 U.S. 510, and Yoder, 406 U.S. 205, show that requiring D.L. to attend Baltimore public schools was a violation of his First Amendment rights.

The court easily distinguished these cases in that both involved parents being charged under criminal statutes for failure to educate their children in public schools. Here, the parents face no such sanctions and retain free choice as to where their child go to school. The issue was one of payment of services. While it is true that the parents would need to pay additional services that would be free were they to attend public schools, such increased economic burden does not meet the standard of a First Amendment violation. The court noted, “The Supreme Court has explained that a statute does not violate the Free Exercise Clause [First Amendment] merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.



OCR issues new Section 504 activity report

On November 28, 2012, the Office of Civil Rights issued its every four year report on civil rights enforcement and educational rights. The report is entitled “Helping to Ensure Equal Access to Education.” The report includes a variety of important information on the subject of the work that OCR does and the quantity of complaints that it handles.

To read the rest of my Examiner.com article, click here.

OCR received its greatest yet number of disability complaints

The federal Office of Civil Rights (OCR) has just released a new report, Disability Rights Enforcement Highlights, and it reveals among other interesting findings that during the three year period from 2009-2011, OCR received its greatest yet number of disability complaints. From 2009-2011, OCR received over 11,700 disability complaints, which comprised 55% of the total overall complaints received. The other 45% of the claims received were related to other areas of OCR enforcement in areas such as national origin, race, age, and sex.


Disability Rights Enforcement Highlights

Based on the report, it is clear that the vast majority of disability complaints were in the area of FAPE, Free and Appropriate Public Education. FAPE questions concern whether a district has offered a special needs child an educational program from which the student can obtain at least some minimal benefit. If not, the student has been denied FAPE. Of the 11,700 disability complains, 4678 were devoted to FAPE questions, or roughly 40%. Other high complaint areas were exclusion, retaliation, and academic adjustment. During this three year span, the OCR launched 15 FAPE related investigations of its own.

Another important function that OCR noted it played over this same time span was protecting the educational rights of “wounded warriors.,” our nation’s soldiers who have returned home from battle with permanent injuries that qualify them for educational protection. OCR noted that often these former soldiers are not familiar with the educational protections provided for them under federal law.

Similarly, educational institutions are not uniformly prepared to serve an influx of veterans with combat-related disabilities such as Traumatic Brain Injury and Post-Traumatic Stress Disorder. OCR’s technical assistance has informed veterans, educators and service providers from institutions such as the Veterans Administration about how the protections afforded to post-secondary students with disabilities apply to those returning from war.

Here are examples of some of the investigations based on complaints received by OCR.

Academic Adjustment: An HIV positive student alleged that his college discriminated against him by dismissing him from its medical office technology program. One of the required classes for it mandated that the students draw blood from one another, and the school dropped the young man due to safety concerns. In order to resolve the complaint, the school agreed to re-enroll the student, consider the student’s request for the academic adjustment of not having other students draw his blood, and provide the college’s staff with training on the necessity of providing academic adjustments to disabled students.

FAPE: OCR facilitated Early Complaint Resolution where parents alleged that a school district had not faithfully implemented their child’s IEP (individualized educational program) who qualified for services due to a mood disorder. Based on these efforts, the district agreed to schedule an IEP to discuss the parent’s concerns and to provide notice to the teachers of the requirement that they implement the IEP.

Harassment: Parents filed a complaint based on harassment they alleged their student had received due to a disability related body odor issue. The child had been previously diagnosed due to Fragile X Syndrome, ADD, Asperger’s Syndrome, and Tourette’s Syndrome. The complaint alleged that based on the body odor issue, the student had been detained by school staff who made her take a shower prior to attending class, had staff spray air freshener on her in front of other students, and be sent home prior to the end of the day due to her body odor. After OCR facilitated Early Complaint Resolution, the school district agreed to train staff regarding the student’s disabilities, enroll the student in its Senior Life Skills course, offer weekly social work services, and assist the student in finding community employment.

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.