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.

 

 

504’s

Section 504 is a federal civil rights which prohibits discrimination against disabled individuals. The intent of Section 504 is to provide disabled students equal access to educational programs, services, and activities. Disabled students may not be denied participation in school programs and activities solely on the basis of disability. Section 504 provides a broader definition of disability than the provided for by IDEA. The Section 504 Regulations can be found in the Code of Federal Regulations; 34 CFR Part 104.

Section 504 is not special education. Special education is a federally funded program that ensures FAPE (a Free and Appropriate Public Education) to all students. Section 504 refers to the Rehabilitation Act and the Americans with Disabilities Act. These laws state, in part, that no one with a disability can be excluded from participating in federally funded programs or activities, including elementary, secondary or post-secondary schooling.

“Disability” refers to a “physical or mental impairment which substantially limits one or more major life activities.” According the the Office of Civil Rights,

The ED Section 504 regulation defines an “individual with handicaps” as any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. The regulation further defines a physical or mental impairment as (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list.

Funding: 504 plans are essentially unfunded mandates.

Plan: A 504 plan delineates the accommodations necessary for a student to have an equal opportunity to access the curriculum. It is made by the 504 team and is revised every year.

Accommodations: Due to the lack of funding, the accommodations available under a 504 plan are much simpler and do not involve more than minimal expense to the district. Such accommodations can range from preferential seating to increased time for tests.

Discipline:  Procedural protections exist for conduct related to a disability under 504 plans. When a child’s behavior is a manifestation of his or her disability, she cannot be disciplined through a suspension of greater than ten days or an expulsion from the district. When the behavior is found to be unrelated to the disability, a child protected by a 504 plan who is suspended or expelled may or may not be entitled to continued education.

Enforcement: When a parent sues under a 504 plan, regardless of whether she wins or loses, she is responsible for the costs of her legal battle. 504 plans are monitored by the U.S. Department of Education, Office of Civil Rights (OCR), whereas IDEA violations, while still under the DOE, are monitored by the Office of Special Education and Rehabilitative Services.

The Law Office of Gregory R. Branch is experienced in helping parents obtain 504 plans and services under them. If you feel your child qualifies but the district is not helping you to implement one for your student or if your child has a 504 plan which is not being followed, please call us for assistance.