Discipline Safeguards Apply to Students in Juvenile Justice Facilities

In a joint Dear Colleague Letter the Office for Civil Rights (OCR) and the Department of Justice (DOJ) have advised residential juvenile justice facilities receiving federal finds that they must comply with the discipline procedures that apply to students with disabilities under Section 504 ( Dear Colleague Letter, 114 LRP 51901 (OCR/DOJ 12/08/14).

The letter reminds these facilities that they must comply with federal anti-discrimination laws, including Section 504 and Title II of the ADA, when disciplining , evaluating, placing, and responding to harassment claims of students with disabilities:

” All public schools, including schools serving students in juvenile justice facilities, are obligated to avoid and redress discrimination in the administration of school discipline,” …To that end, they must ensure that they comply with provisions governing the disciplinary removal of students for misconduct caused by, or related to, a student’s disability.” Additionally, “…under Title II, State and local juvenile justice residential facilities must implement reasonable modifications to their policies, practices, or procedures to ensure that youth with disabilities are not placed in solitary confinement or other restrictive security programs because of their disability-related behaviors.”

Specifically, this means that residential juvenile justice facilities may not subject students with disabilities to disciplinary changes of placement for disability-related conduct. This is true regardless of the severity of the conduct and perceived safety concerns. Unless the student possessed a weapon or drugs or inflicted serious bodily injury, the facility must conduct a manifestation review (MDR) if the facility intends to remove the student to solitary confinement or another more restrictive setting for more than 10 school days. If the student’s conduct is determined to be a manifestation of his disability, the facility in most cases must return hime to his previous setting.

Moreover, the letter advises these facilities that they have an obligation to investigate disability-based claims for harassment.

“When a responsible employee of a recipient knows or reasonably should know of possible harassment on the basis of race, color, national origin, sex, or disability, the recipient must take immediate and appropriate steps to investigate or otherwise determine what occurred,” and ” …where the employee knows or has reason to know that a hostile environment has been created, the facility must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”

Finally, OCR and DOJ advised juvenile justice residential facilities that residents with disabilities with disabilities must be educated with students without disabilities to the maximum extent appropriate and they must comply with Title II’s “effective communication” requirements for students
with hearing, vision, and speech impairments.

School District Employee Cannot Be 504 Hearing or Review Officer

Section 504 requires school districts to provide a process for parents to resolve disputes regarding services provided under Section 504. At 34 CFR 104.36 the 504 regulations state that process must include “an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure.individual conducting the hearing or review must be impartial.”

Section 504 also requires that school district’s designate an individual to be a 504 Coordinator. In Mathews County (VA) Pub. Schs., 114 LRP 42768 (OCR 04/09/14), the school district ‘s 504 Coordinator was also the hearing officer designated to resolve 504 disputes. After a parent filed a complaint, the Office for Civll Rights determined the 504 Coordinator could not also serve as the hearing officer stating:

“OCR has consistently interpreted the impartiality requirement of 34 C.F.R. § 104.36 to bar school district employees and district officials, including school district board members, from serving as hearing or review officers….Because of their professional and financial relationship with the district and the potentially large financial consequences to the district that may result from a Section 504 hearing, district employees and board members cannot be considered neutral, disinterested fact finders.”

Moreover, “An employee such as a 504 Coordinator, in particular, cannot be expected to be impartial when policies developed and/or administered by that employee or decisions he or she made and/or approved could be at the heart of the dispute. “

The Office for Civil Rights distinguished 504 from other types of hearings:

“…Section 504 hearings differ from other types of hearings, such as disciplinary hearings, where administrators and board members may be empowered to act as hearing officers because the disputed issues require only consideration of the institution’s own policies. In Section 504 hearings, in contrast, the hearing officer must construe independent legal standards and may be called upon to conclude that the district’s policies and procedures conflict with Federal law.”

To resolve the complaint OCR required that the district develop a hearing and review process that was impartial. The district must submit that process for OCR’s approval and OCR would monitor the implementation of that process.

Removing Barriers to Play: Accessible Playground Standards under the ADA

This is a special guest posting by Emily Harvey, an attorney with my office: The Legal Center for People with Disabilities and Older People

Jane sits alone on the sidewalk while her two best friends giggle with excitement as they take turns flying down the new slide on the school playground. Jane looks longingly at the slide, but remains on the sidewalk. It’s too difficult for her to push her wheelchair through the deep gravel that covers the entire ground under the new playground equipment. Over the summer, Jane’s school tore out the old playground and completely rebuilt this new playground. Unfortunately, Jane’s school did not research their legal obligations prior to this undertaking. Jane is now unable to access the new playground and the school has violated her civil rights under the Americans with Disabilities Act (ADA).

Play is so important to the development of children that the United Nations High Commission for Human Rights has recognized it as a right of every child. As any pre-school or elementary school teacher will tell you, much of the socialization that occurs during the school day takes place on the playground during recess. When children are unable to access the playground, they lose the opportunity to engage in play and physical activity with their peers.

Places of public accommodation are subject to Title III of the Americans with Disabilities Act. Elementary schools are specifically listed within the definition of public accommodations. To address playground accessibility, the Department of Justice added specific design standards for play areas to the Americans with Disabilities Act Accessibility Guidelines (the ADAAG) in 2000. These guidelines were incorporated into the 2010 ADA Standards for Accessible Design (2010 ADA Standards). However, the 2010 ADA Standards apply only to new or altered playgrounds. Normal maintenance of a playground does not constitute an alteration that would require a school to come into compliance with these standards.

The design standards require schools to ensure that new or altered playgrounds meet certain requirements related to accessible routes, transfer systems, play components, and ground surfaces as set out in the 2010 ADA Standards. For example, a school is obligated to provide a specific number of accessible play components determined based on the total number of ground-level and elevated play components on the particular playground.

Additionally, the ADA requires that all entry and exit points of accessible play components are on an accessible route, meaning a pathway specifically designed to provide access for individuals who use wheelchairs or other mobility devices. The entry and exit points of at least 50% of elevated play components must be accessible and must therefore be connected by elevated accessible routes. Elevated play components are the part of a play structure that are approached above or below grade level, such as a slide. Ramps and transfer systems are the two most common ways to provide access to elevated components. If a playground consists of 20 or more total elevated play components, at least 25% of those must have ramps – transfer systems, such as a transfer platform with transfer steps and supports, do not suffice for full compliance. A transfer platform is a landing that allows a child to lift onto the play structure and leave her wheelchair or mobility device behind at ground-level. Transfer platforms and steps must have transfer supports, such as handrails, handgrips, or handholds, at each level where transferring is the intended method of access. When transfer systems such as platforms and steps are used to provide access, the 2010 ADA Standards also provide specific size, height, turning space, and other technical requirements.

It should also be noted that there are specific technical requirements for handrails, rise angles, and the width of accessible routes included in the 2010 ADA Standards. Ground surfaces on accessible routes and in use zones must comply with requirements that are defined by the American Society for Testing and Materials and incorporated by reference into the 2010 ADA Standards. One example of a ground surface that would meet these standards is pour-in-place rubber mats. Ground surfaces must be inspected and regularly maintained to ensure compliance.

Even though Jane may not get to play on the new slide today, she does at least have a legal right to an accessible playground as defined under the ADA. Prior to the ADA and the revisions to the ADA Standards in 2010, Jane may not have been successful if she asked the school to change the ground surface of her new playground so she could play. She likely would have been cast off to the edge of the playground for years to come and missed out on the very important aspects of play and socialization with her peers. Even though the accessibility standards in place today don’t make every aspect of every playground accessible to every child, we have at least taken a step in the right direction.

Please note that the requirements of the ADA are very technical in nature and the above information is intended only as a brief overview of a school’s possible legal obligations and does not constitute legal advice. If you are in Colorado and have questions about whether a specific playground is compliant, please contact The Legal Center. If you live in a state other than Colorado, you might contact an attorney in your home state.

DOJ, OCR, and OSERS Issue Joint Guidance Letter and FAQ to Public School Educators Clarifying that the IDEA and ADA have Different Requirements: Complying with One may not Mean Compliance with the Other

Today, November 12, 2014, the Department of Justice (DOJ), and Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) with the Department of Education have issued a joint letter and FAQ to public school educators ( http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pd) explaining that the:

“Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act of 1990 (Title II), and Section 504 of the Rehabilitation Act of 1973 (Section 504) – address the obligations of all public schools to meet the communication needs of students with disabilities, but do so in different ways. In particular, the IDEA requires that schools make available a free appropriate public education (FAPE), consisting of special education and related services, to all eligible children with disabilities (including those with disabilities that result in communication needs). Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aids and services.”

The letter and FAQ goes on to say that public schools must consider the IDEA analysis and the Title II of the ADA effective communication analysis in determining how to meet the communication needs of an IDEA eligible student with a hearing, vision, or speech disability. Many times an IEP might meet the requirements of both the IDEA and ADA, but there are times when the effective communication requirements of the ADA may be different than the requirements of the IDEA. In those cases, the letter states:

“…in order to comply with Title II, a school may have to provide the student with auxiliary aids or services that are not required under the IDEA. In other instances, the communication services provided under the IDEA will meet the requirements of both laws for an individual student.”

This letter is based on a 9th Circuit Court of Appeals decision, K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014),(http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐ 56259%20web%20revised.pdf).

Interestingly, the United States government filed an amicus (friend of the court) brief in this case when it was before the Ninth Circuit; that brief can be found at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.

The bottom line is schools cannot assume that by providing a free appropriate public education through an IEP that they have also met the communication needs under the ADA of students with vision, hearing, or speech disabilities. The school may need to consider providing additional auxiliary aids and services in order to comply with Title II of the ADA.

Charter School’s Expulsion of Student without Evaluating Him for Special Education Eligibility Violates the IDEA : Parent was NOT required to request the evaluation

A Michigan charter school violated the IDEA by expelling a student with ADHD and oppositional defiant behavior without first evaluating his special education eligibility. It didn’t matter that the child’s guardian had not requested an evaluation.  In Rutherford Winans Academy, 114 LRP 32901 (Mich SEA 2013), a student had serious  behavioral issues that resulted in him being frequently disciplined. His guardian made several verbal requests for help for the student, but eventually the Academy expelled him and his guardian complained to the Michigan State Education Agency. The complaint indicated that the student had numerous behavioral difficulties, suspensions, and a hospitalization, but the student was never scheduled for an assessment to determine special education eligibility.

In its investigation the SEA found that the student had been  suspended four times and action plans were developed the first three times advising him what he needed to do to stay in school, but the plans did not include and the guardian did not specifically request a referral for a special education eligibility assessment. After the fourth suspension, the student was expelled. The investigation further revealed that the general education teacher had noted the student has serious behavioral issues and the guardian had even come into the classroom with a slip of paper requesting social work services. At one point, after the student was hospitalized,  the school principal told the guardian she should have the student evaluated.  He was evaluated at the Detroit Development Center and found to have ADHD and oppositional defiant behavior.

The charter school argued that it had no duty to initiate the evaluation process, because the guardian had not requested IDEA services or testing. In its decision the SEA noted that the principal in suggesting the guardian have the student evaluated after he was hospitalized had improperly “placed the burden for the evaluation on the guardian.”  Finally, in finding the school had violated the IDEA, the SEA noted: ” A student’s entitlement to special education does not depend upon the vigilance of parents or guardians.”

Least Restrictive Environment Applies to Extended School Year

Students with disabilities who need extended school year (ESY) are entitled to receive those services in the least restrictive environment. This is true even if the school district does not offer a summer program to students without disabilities.  In T.M. by A.M. v. Cornwall Central School District, 63 IDELR 31 (2d Cir. 2014), the 2d Circuit U.S. Court of Appeals  held that least restrictive environment applies equally to extended school year and school districts must offer a continuum of educational placements for extended school year services. This case involved  a 6 year old boy with autism who made progress in  his general education kindergarten class. In fact, he was mainstreamed for all of his kindergarten classes and was provided significant supports to successfully integrate him in the general education program.   He was determined eligible for extended school year services in the summer, but the summer programs offered by the district only served students with disabilities. The parents rejected the segregated programs offered by the school district and enrolled their son in a mainstreamed private school program. The parents also requested a due process hearing regarding the failure of the district to offer a mainstreamed summer program.

The impartial hearing officer determined that, since the school district was not required to offer a summer program for students without disabilities, it was not required to offer a mainstreamed extended school year program for this child. The parents appealed to federal district court and the district court ruled for the school district that it did not have to provide a mainstreamed summer program.

The Court of Appeals overruled the district court noting that extended school year services are an essential program component for students who require year round services to prevent substantial regression. The Court stated that: “Under the IDEA least restrictive environment refers to the least restrictive environment consistent with the student’s needs, not the least restrictive environment that the school district chooses to make available.” Thus, districts must ensure that they have a range of educational settings available for extended school year placements. If a district does not offer a mainstream ESY program, it can still make a continuum available by considering a private summer program or a mainstream ESY program offered by another public entity. In the case at hand, the school district was ordered to reimburse the parents for the costs of the mainstreamed private summer program where they had placed their son.

Office for Civil Rights Reminds Charter Schools that Federal Civil Rights Laws Apply Equally to Charter Schools

On May 14, 2014 the Office for Civil Rights (OCR) issued a “Dear Colleague” letter clarifying that federal civil rights laws, enforced by OCR, apply to charter schools. In the letter Assistant Secretary for Civil Rights Catherine E. Lhamon states:

 “I am writing to remind you that the Federal civil rights laws, regulations, and guidance that apply to charter schools are the same as those that apply to other public schools,” the letter says. “For this reason, it is essential that charter school officials and staff be knowledgeable about federal civil rights laws. These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.”

The Assistant Secretary lists some of those laws: 

Title VI of the Civil Rights Act of 1964 (Title VI) (prohibiting discrimination based on race, color, or national origin); 

Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination based on sex); and

Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II) (prohibiting discrimination based on disability).

Moreover, the guidance notes that these Federal civil rights laws and their specific legal obligations apply to all public charter schools in the United States, regardless of whether they receive Federal funds under the Department of Education’s Charter Schools Program.

Regarding admissions, the letter notes that charter schools may have choice based admissions but points out that: 

“Although public charter schools’ civil rights obligations are no different from those of other public schools in this regard, the fact that students choose to attend a charter school and are not simply assigned to attend a charter school underscores the need to be mindful of the rights of children and parents in the community when publicizing the school to attract students and when evaluating their applications for admission.”

Specifically, that may mean printing materials so that parents of language-minority students can understand them, or providing interpreters or translating services. Charter schools must also avoid “admissions criteria that have the effect of excluding students on the basis of race, color, or national origin from the school without proper justification, and they cannot bar students from admission on the basis of disabilities. In addition, charter schools must be in compliance with district desegregation plans. 

Regarding disabilities the Assistant Secretary notes:

“Under Section 504, every student with a disability enrolled in a public school, including a public charter school, must be provided a free appropriate public education–that is, regular or special education and related aids and services that are designed to meet his or her individual educational needs as adequately as the needs of students without disabilities are met.  Evaluation and placement procedures are among the requirements that must be followed if a student needs, or is believed to need, special education or related services due to a disability.

Charter schools may not ask or require students or parents to waive their right to a free appropriate public education in order to attend the charter school. Additionally, charter schools must provide nonacademic and extracurricular services and activities in such a manner that students with disabilities are given an equal opportunity to participate in these services and activities. ‘

The letter concludes by discussing discipline and notes:

“All public schools, including charter schools, are obligated to avoid and redress discrimination in the administration of school discipline on the basis of race, color, or national origin; disability; and sex. This obligation applies over the entire course of the disciplinary process, from behavior management in the classroom, to referral to an authority outside the classroom because of misconduct, to resolution of the discipline incident. The Guidance on the Nondiscriminatory Administration of School Discipline25 offers detailed assistance on how to identify, avoid, and remedy discriminatory discipline. The discipline guidance document focuses on racial discrimination, but much of its analytical framework also applies to discrimination on other prohibited grounds. In addition, when addressing discipline for students with disabilities, it is important that charter schools comply with applicable legal requirements governing the discipline of a child for misconduct caused by, or related to, the child’s disability.”

Finally the Assistant Secretary notes that OCR and the Office of Special Education and Rehabilitation Services plan to issue a joint guidance letter on the rights of students with disabilities who attend charter schools.

 

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