District’s alleged disregard of bullying supports parents’ 504 and ADA claims

     In Sutherlin v. Independent School District No 40 of Nowata County Oklahoma 113 LRP 20535 (N.D. Okla. 05/13/13), the U. S. District Court of Northern Oklahoma ruled that the parents of a 13-year-old boy with Asperger’s disorder and a learning disability could sue the school district under Section 504 and the Americans with Disabilities Act (ADA) because the boy was subjected to disability based bullying and harassment. The parents claimed that between 2010 and 2012, they reported 32 incidents to the school district of other students physically assaulting their son and mocking him about his difficulties with socialization. The parents also reported that other students called the boy names including the R word, crazy, creepy, and freak. The parents alleged that the school district failed to investigate these incidents or take further action to prevent future bullying.

     In court the school district argued that the parents had not shown that the harassment by other students was disability based or that the school district was deliberately indifferent to the harassment. The court, drawing from other cases, set out a five point test for establishing a claim under 504 and the ADA for disability-based student- on- student harassment.

1. The student is an individual with a disability;

2. He or she was harassed based on the disability;

3. The harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment;

4. The school district knew about the harassment, and

5. The school district was deliberately indifferent to the harassment. 

     Here, the school district agreed with the five point test, but disagreed that the parents had shown that the harassment was disability based or that the district was deliberately indifferent to it. The court, however, determined that the name-calling and mocking, if true, was sufficient to show disability based harassment. Moreover, the parents had alleged several instances in which the school district did not take action to cease or prevent the bullying behavior. The court stated, if the allegations were true, they showed deliberate indifference by the school district. Thus, the court denied the school district’s motion to dismiss the parents’ 504 and ADA claims and the disability based harassment case will move on.

Justice Department Determines Private School Voucher Programs Must Comply with the ADA

     Last week the Department of Justice (DOJ) released a letter to the Wisconsin Department of Public Instruction (DPI) affirming that Wisconsin must ensure that students with disabilities who seek to enroll or are enrolled in private schools through Wisconsin’s taxpayer funded voucher program are not discriminated against on the basis of their disability. Wisconsin enacted laws creating the tax payer funded private school voucher program over 20 years ago and it was implemented in the city of Milwaukee by DPI. In June 2011 a collation of advocacy groups (the ACLU Foundation for Racial Justice, ACLU of Wisconsin, and Disability Rights Wisconsin) filed a complaint with the Department of Justice alleging that students in the Milwaukee Public Schools are (1) deterred by DPI and the private voucher schools from participating in the voucher program, (2) denied admission to voucher schools when they do apply, and (3) expelled or constructively forced to leave voucher schools as a result of policies and practices that fail to accommodate the needs of students with disabilities. These advocacy groups claimed the actions by DPI and the private voucher schools violate Title II of the Americans with Disabilities Act (ADA).

          The Department of Justice investigated the allegations of the complaint and interviewed parents and public school district officials. Based on the investigation, DOJ determined that the Wisconsin Department of Public Instruction (DPI) must do more to enforce the ADA requirements that govern the treatment of students with disabilities who participate in the private school voucher program. Because the voucher program is publicly funded and administered by the state, it must comply with Title II of the ADA. Title II is the section of the ADA that applies to state and local governmental entities. Thus, DPI must ensure students with disabilities are not discriminated against based on their disability. According to the letter:

“DPI’s obligation to eliminate discrimination against students with disabilities in its administration of the school choice program is not obviated by the fact that the schools participating in the program are private secular and religious schools. Indeed, courts recognize that the agency administering a public program has the authority and obligation under Title II to take appropriate steps in its enforcement of program requirements to prohibit discrimination against individuals with disabilities; regardless of whether services are delivered directly by a public entity or provided through a third-party.”

Specifically, DOJ required the Wisconsin DOI to comply with:

1. ADA Title II Obligations. DPI must eliminate discrimination against students with disabilities or students whose parents or guardians have disabilities. The private or religious status of the individual voucher schools does not absolve DPI of that responsibility.
2. Complaints. DPI must establish and publicize a complaint procedure for individuals to file disability-based complaints and provide DOJ with copies of those complaints.
3. Data and Reporting. DPI must provide detailed data regarding how students with disabilities are being served by voucher schools.
4. Public Outreach. DPI must conduct outreach to educate families of students with disabilities about school choice programs, and provide specific and accurate information about the rights of students with disabilities and the services available at voucher schools.
5. Monitoring and Oversight. DPI must ensure that voucher schools do not discourage students with disabilities from applying for admission, or improperly reject a student with a disability who does apply to a voucher school. Voucher schools cannot exit/expel a student with a disability unless the school has first determined, on a case-by-case basis, that there are no reasonable modifications to school policies, practices or procedures that would enhance the school’s ability to serve the student.
6. ADA Training for Voucher Schools. DPI must provide mandatory ADA training to voucher schools on a periodic basis and submit a copy of the training materials and attendance sheets to DOJ.
7. Guidance. By the end of 2013, DPI must develop program guidance to assist and educate voucher schools about ADA compliance. That guidance must be developed in consultation with DOJ.

School District Erroneously Requires Parent to Provide Medical ADHD Diagnosis in Order to Get 504 Plan

In South Monterey County (CA) Joint Union High School District 112 LRP 28705 (OCR 2012), the Office for Civil Rights (OCR) determined that a school district had violated Section 504 by requiring that a parent provide a medical diagnosis that her son had ADHD before  the District developed a 504 Plan. The student began attending  school in the District in his 9th grade year in the 2010-2011 school year. His mother met several times with school district staff trying to get the District to develop a 504 Plan for the student because he had been previously diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he attended a different school district. Each time the mother met with the District, she was told that she must produce a medical diagnosis of ADHD in order to obtain a 504 Plan. The school district never offered to evaluate the student itself. The student performed very poorly in his classes getting grades of “Ds”and “Fs”.

In January, 2011 the mother provided a diagnosis for her son from 2004 that identified him as having ADHD. Subsequently, the school district convened a meeting and developed a 504 plan that provided accommodations for the student. The mother, however, filed a complaint with OCR for the district’s delay in developing the plan and for not conducting its own evaluation of the student.

The Office for Civil Rights determined that district staff had acted under the erroneous belief that a medical diagnosis was required to qualify a student for a 504 Plan. Moreover, the school district’s mistake in requiring a medical diagnosis was exacerbated by requiring that the parent pay for the medical diagnosis. If the school district felt a diagnosis was needed, it was obligated to pay for the diagnosis. In order to avoid paying for the evaluation, the school district relied on an outdated diagnosis from 2004. This resulted in an inadequate 504 Plan. As a result, the student went for over a year and a half without being evaluated by the school district to either confirm, disprove, or modify his perceived diagnosis of ADHD and to identify the nature and extent of his possible disabilities. To remedy the 504 violation the school district agreed to conduct appropriate evaluations of the student, provide him with compensatory services, and to to train its staff on the requirements of section 504.

In Reviewing MDR Decisions, Hearing Officers May Consider Whether the Student Actually Violated the Code of Student Conduct

Students with disabilities, like all students, may be disciplined for violating the school’s code of conduct.  If that discipline involves a disciplinary change in the student’s placement, the school district must conduct a manifestation determination review (MDR) to determine whether the student’s alleged misconduct was related to the student’s disability. The outcome of the MDR can be appealed to  a hearing officer.  Historically, hearing officers have generally only reviewed the evidence regarding whether the student’s  misconduct was related to the students’ disability or whether the school district followed the appropriate procedures. Hearing officers have not generally reviewed whether the student with a disability actually violated the code of conduct. In Letter to Ramirez , 60 IDELR 230 (OSEP Dec. 5, 2012), Melody Musgrove, the Director of the Office of Special Education Programs, clarified that hearing officers may address whether the student did, in fact, violate the code of conduct.

Ms. Musgrove’s letter was in response to a letter from a former hearing officer asking for guidance on  whether it was within “a hearing officer’s jurisdiction to get involved in the determination of whether a certain action by a student with a disability amounted to a violation of the school district’s Student Code of Conduct.”  In response, Ms. Musgrove stated “Because the hearing officer’s authority includes a determination regarding 34 CFR 300.530 and that provision includes references to removal from the current placement of a child with a disability who violates a code of student conduct, there may be instances where a hearing officer, in his discretion, would address whether such a violation has occurred. The IDEA and its implementing regulations neither preclude or require that a hearing officer determine whether a certain action by a student with a disability amounts to a violation of the school district’s Student Code of Conduct.” Thus, hearing officers have discretion whether to make that determination, but it is within their jurisdiction. So, if parents question whether their child actually did violate the school district’s Student Code of Conduct, they may raise that as an issue with the hearing officer.

Change in Location Can Be A Change in Placement

     Some school districts and their counsel assert that, under the IDEA, a change in location of service delivery is not a change in placement if the IEP services remain the same. If the location change is not a change in placement, the service location can be changed without parent input or an IEP meeting. That may sometimes be the case, but there are many instances in which IEP services may generally remain the same but a change in location will affect the service delivery so that it is a change in placement. For example, students with disabilities must attend the school they would attend if they did not have a disability, unless the IEP requires otherwise. Thus, placing a student with a disability in a school they would not attend if they did not have a disability is an IEP team decision and changing a student’s placement to a school they would not attend if they did not have a disability is an IEP team decision. Whether the change in location is a change in placement turns on the facts of the specific situation.

     For example, in Valentin v School District of Philadelphia, 113 LRP 7167 (E.D. Pa 02/19/13), the court ruled that a district’s practice of unilaterally transferring students with autism between centralized grade-level programs located in different schools violated the IDEA.  The school district had a practice of  unilaterally changing the building assignment for students with autism as the students changed grade levels.  The new building assignment decision was made without an IEP meeting or parent input. Moreover, parents were not provided written notice of the location change and parents were not notified of the change in location until after the decision had been made. The school district argued that it was just changing the grade level and physical location where IEP services would be delivered, which is not a change in placement.

     The court, however, noted that children with autism typically have difficulty with transitions and changes in routine and a change in the physical location of services would likely be far more traumatic for students with autism than it would for students with other disabilities. The court concluded that under the particular facts of the case, transferring students with autism to a separate school building in the school district constitutes a change in their educational placement under the IDEA. Thus, the court ordered the school district to follow the IDEA’s placement procedures, including parent participation and appropriate notice, before transferring students with autism to new schools.

IDEA Regulations Amended to Allow School Districts Easier Time Accessing Public Benefits

The U.S. Department of Education announced today, effective March 18, changes in the IDEA Regulations that will facilitate school districts accessing public benefits, such as Medicaid, or insurance to pay for services in a student’s IEP  but also protecting parent rights. Currently, school districts may access a student’s or parent’s public benefits or insurance,  but are required to obtain parental consent each time the district seeks access those benefits. Effective  March 18, school districts will still need to obtain parental consent to access the  benefits, but districts are only required to obtain a one-time written consent before accessing public benefits or insurance for the first time. Additionally,  school districts are required to provide written notification to the child’s parents before accessing the public benefits or insurance for the first time and before obtaining the one-item consent.  While the consent is one-time, the notification must be provided annually.

Moreover, the parent’s consent must specify,  among other things, that the parent “understands and agrees” that the school district may access the child’s or parent’s public benefits or insurance. The Department of Education has provided a summary of these changes. It is hoped that these changes will reduce district’s administrative tasks and cost, while protecting parent rights.

18 Days of Early Dismissals Constitute a Pattern Requiring a Manifestation Determination Review

In South Bronx (NY) Classical Charter School, 59 IDELR 231 (OCR 2012) the Office for Civil Rights (OCR) determined that the school’s frequent early dismissals of a kindergartner with a speech/language impairment required a manifestation determination (MD) meeting  before excluding the student from school for more than 10 days. Per Section 504 (and the IDEA) school districts cannot discipline students with disabilities  by excluding them from school for more than 10 consecutive school days or, in some cases, nonconsecutive school days, without first conducting a manifestation determination (MD) review. In this case, the school district suspended the child for one day for making a gun sign with his fingers and stating he was going to kill his teacher. The school implemented a series of early dismissals to control the student’s inappropriate behaviors. Those behaviors included  failing to cooperate and follow directions, yelling, howling, and throwing items at school staff. The student was released from school at 1 p.m. from Oct 11, 2011 through Oct.  17, 2011 and from noon on Oct. 18, 2011 through Oct. 28, 2011. The district did not provide him with supplemental instruction on those early release days.

The parent filed a complaint with OCR which initiated an investigation. OCR determined that, although the student’s exclusions were not for consecutive or full days, they amounted to a pattern that significantly changed his placement. As a result, before excluding the student for more than 10 school days, the district should have convened a group of knowledgeable persons to determine whether the student’s conduct was a manifestation of his disability. To remedy the violation, the school district agreed to provide training to its staff regarding the requirements of 504 relating to disciplining students with disabilities and appropriately implement those requirements. The school district has also agreed to provide additional school services to compensate the student for the time he missed due to the early dismissals.