9th Circuit Rules Teacher Complaining to OCR of Student Rights Violations is Protected from Retaliation

     In Susan Barker v Riverside County Office of Education, (9th Cir., 10/23/09) the 9th Circuit Court of Appeals has ruled that a teacher, despite not having a disability herself, can sue under Section 504 and the ADA  for the retaliation she suffered after she filed a complaint with the Office for Civil Rights alleging her employer was denying students with disabilities a free appropriate public education. 

     Susan Barker worked as an intinerant Resource Program Specialist teacher with the Riverside County Office of Education from 2002 to 2006. As early as 2003 she told her supervisors that the special education services provided by the Riverside County Office of Education did not comply with federal and state law. In May 2005 Ms. Barker and a coworker filed a class discrimination complaint with the Office for Civil Rights (OCR) alleging that the Riverside County Office of Education was denying students with disabilities a free appropriate public education.

     The next month, June 2005, Ms. Barker’s supervisors learned that she had filed the OCR complaint and according to Ms. Barker, they began harassing and retaliating against her. The retaliation included  intimidation, failing to respond to her emails and phone calls, excluding her from important staff meetings, moving her work sites further from home, reducing her caseload even though the number of students with disabilities increased, and refusing to allow her to fill in for other teachers during their vacations. This resulted in her being constructively discharged.  She alleged that she was forced to quit on August 1, 2006 due to an intolerable work environment. 

     Ms. Barker then filed a complaint with OCR on her on behalf alleging retaliation. After an investigation (which included OCR interviewing 15 current and former employees of the Riverside County Office of Education as well as reviewing documents and other evidence) the Office for Civil Rights determined that a preponderance of the evidence showed she had been retaliated against for advocating for her students with disabilities. She then filed suit in federal district court for violations of the anti-retaliation provisions of Section 504 and Title II of the ADA. Although she does not have a disability, Ms. Barker’s lawsuit was essentially an employment discrimination case claiming disability discrimination because she was constructively discharged for advocating for students with disabilities. The district court determined she could not sue (did not have standing)because she was not a qualified person with a disability and dismissed her case. She appealed to the Ninth Circuit Court of Appeals.  

     The Ninth Circuit determined that the anti-retaliation language in Section 504 and Title II of the ADA is broad and does not only protect persons with disabilities. The Court made the common sense observation that: “Indeed, empathetic people who teach and interact frequently with the disabled are those most likely to recognize their mistreatment and to advocate on their behalf.” Thus, Ms. Barker can pursue her lawsuit.

     For more information regarding retaliation under Section 504 and Title II of the ADA, please see my article from March 2008 entitled Protection from Retaliation.

GAO Report: Education Needs Coordinated Approach in Supporting Students with Disabilities in Higher Education

     The Government Accounting Office (GAO) issued a report on October 28th of its examination of services for students with disabilities in postsecondary education. The GAO noted that more students with disabilities were pursuing higher education than in the past and that recent legislative changes had the potential to increase the number and diversity of students with disabilities in postsecondary education. That legislation includes the Higher Education Opportunity Act that added new provisions to support postsecondary students with disabilities; the ADA Amendments Act of 2008 that provided broader coverage of persons with disabilities; and the Post 9-11 Veterans Educational Assistance Act of 2008 that expanded educational benefits for veterans, many of whom may have newly acquired disabilities. Additionally, the ADA and Section 504 require postsecondary schools to provide equal access to services for students with disabilities by providing accommodations, auxiliary aids and services, academic adjustments, and physical access to the campus. Moreover, the Department of Education is responsible for ensuring  that postsecondary schools comply with federal disability laws.

     The GAO looked at: (1) what is known about the population of postsecondary students with disabilities; (2) how postsecondary schools are supporting students with disabilities; (3) what challenges, if any, schools face in supporting these students; and (4) how the Department of Education is assisting schools in supporting these students.

     (1) The GAO found that in 2008 students with disabilities represented nearly 11 percent of all postsecondary students. Moreover, the report noted, that the number of students with disabilities in higher education has grown. The population of students with disabilities is similar to their peers of students without disabilities regarding age, race, and the schools they attended (whether public or private). Students reported having a wide range of disabilities. In 2008 the largest proportion of students, 24%  reported having a mental, emotional, or psychiatric condition, or depression. Attention deficit disorder (ADD) was the next largest percentage (19%), and fifteen percent of the students had an orthopedic or mobility impairment. In a previous study done in 2000, more than twenty five percent of the students reported  having orthopedic or mobility impairments and only seven percent reported having ADD.

     (2)The GAO found that postsecondarys schools use a wide range of accommodations for students with disabilities. The accommodations include: academic adjustments (such as  extended time on tests, reduced course load) and auxiliary aids or services (such as notetakers and sign language interpreters). Schools determine accommodations on a case by case basis and based on documented needs. The documentation includes a “disability diagnosis” and the implications of the disability on accessing the educational program. The report does a very good job of providing  (a) examples of the processes schools use to determine how to accommodate students with disabilities and (b) examples of accommodations. In particular the report notes how assistive technology has expanded the educational opportunities for students with disabilities. For example, voice recogniton software can help students prepare papers by talking to the computer.

     (3) Schools face broad challenges supporting students with disabilities. Students may not know their rights and responsibilities regarding accommodations. Moreover, faculty may be unaware of the obligation to support students with disabilities. Finally, challenges are expected in supporting two growing populations of postsecondary students: (1) veterans with newly acquire disabilities and (2) students with intellectual disabilities.

     (4) The Department of Education has assisted postsecondary schools to support students with disabilities through (1) the Office for Civil Rights (OCR) (2) the Office of Special Education and Rehabilitation Services (OSERS) and (3) the Office of Postsecondary Education (OPE). But these offices have different missions and priorities, focus on different clients, and provide different types of assistance to schools. The Department of Education does not have a mechanism to systemically share information across these offices and coordinate its technical assistance. Thus, the GAO concludes that the Department of Education needs a coordinated approach to improve its assistance to postsecondary schools in supporting students with disabilities.

     This report is thorough and I found the summary of the legal protections for students with disabilities in higher education and the detailed discussion of how schools are supporting those students helpful. If you didn’t click on the word “report” in the first sentence, the report can be found at http://www.gao.gov/new.items/d1033.pdf.

 

President Obama Signs the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

     Today President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA). The HCPA expands federal hate crime protection beyond race, religion and national origen to now include the victim’s actual or perceived sexual orientation, gender, gender identity, or disability. This will allow the U.S. Justice Department to investigate and prosecute certain bias-motivated crimes based on the victim’s actual or perceived sexual orientation, gender, gender identity, or disability.

     While 45 states have some hate crime legislation: only 30 states and the District of Columbia (the District) include sexual orientation in their law, only 26 and the District include gender, only 12 and the District include gender identity, and only 30 and the District include disability.

     The HCPA also provides federal support through training and direct assistance to local law enforcement officials to help ensure bias-motivated crimes are investigated and prosecuted. In some cases the HCPA allows federal intervention if local law enforcement officials fail to act. National Public Radio has done a very nice story on this legislation which can be viewed by clicking here. 

National Center for Learning Disabilities Provides State by State Special Education Scorecards

     The National Center for Learning Disabilities has provided scorecards for every state that includes information on state special education enrollment (including the number of students with specific learning disabilities), student performance on key indicators, federal funding provided to support special education in each state, and the state’s rating by the U.S. Department of Education on its State Performance Plan. Key indicators include the percentage of students with an IEP who: graduate  with a regular diploma, drop out of school, and score proficient on state assessments in reading and math. The scorecard also provides information on how much a state received in IDEA federal funding as well as how much more it would receive if the IDEA was fully funded. The scorecards are easy to access by going to http://www.ncld.org/on-capitol-hill/policy-related-publications/special-education-scorecards and then clicking on your state.

EEOC Seeking Public Comment on Rules Implementing the ADA Amendments Act of 2008

     Last September 25, 2008 President Bush signed the Americans with Disabilties Amendments Act of 2008. The ADA Amendments Act legislatively over turned decisions by the Supreme Court that narrowed the definition of disability under the ADA. Congress found that persons with many types of impairments including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder had been unable to bring ADA claims due to  narrow court  interpretations of the definition of disability. The ADA Amendments Act emphasizes that the definition of disability should be interpreted broadly to cover individuals to the maximum extent permitted by the terms of the ADA.

     Thus, the ADA Amendments Act makes it easier for an individual trying to enforce the ADA to establish that he or she has a disability and is protected under the ADA. The ADA Amendments Act retained the basic definition of disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. But the Act changes how these terms should be interpreted. These terms are intepreted in the proposed regulations. For example:

1. The Act directs the Equal Employment Opportunity Commission (EEOC) to revise its regulations defining the term “substantially limits”;

2. The Act and the proposed rules expand the definiton of major life activities to include reading, bending, and communicating. It also includes as major life activities major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;

3. The Act and the rules state that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in determining whether a person has a disability. This means that things such as medication, medical equipment and devices, prosthetic limbs, low vision devices, and reasonable accommodations that reduce (mitigate) the impact of an impairment on an individual cannot be considered in determining if the individual has a disability;

4. The Act and rules clarify that an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when it is active.

     For more information on the proposed EEOC Rules interpreting the changes in the ADA Amendments Act, the EEOC has provided Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008. These Questions and Answers provide information on the changes in the ADA itself, as well as information on the proposed rules. Comments are due  60 days from September 24th and can be submitted by mail, fax or electronically. Written comments should be sent to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, DC 20507. Comments can be faxed to (202) 663-4114 and comments can be sent electronically to http://www.regulations.gov.

 

The ADA/504 and Assistance in Toileting in Public Before School and After School Programs

     I received a great question and comment to my post from last May Toileting Assistance in Child Care and the ADA . That post discussed the requirements under Title III of the ADA to provide toileting assistance to children with disabilities in privately operated day care programs. Yesterday a reader asked whether similar rules apply to public preschool and after school day care programs. The answer is yes.

     Title II of the ADA requires that state and local governmental entities provide equal access to programs and  services to qualified persons with disabilities. Public schools are covered by Title II and their before and after school child care programs are also covered. Section 504 of the Rehabilitation Act also requires equal access to public school services for children with disabilities. Equal access includes equal access to the before and after school child care programs operated by the public schools. The school must consider providing reasonable accommodations to ensure  a child with a disability has equal access to the before or after school child care program.

     For example, in an Office for Civil Rights (OCR) decision Chattahoochee County (GA) School District [see 6 ECLPR (Early Childhood Law and Policy Reporter) 26 (OCR March 5, 2008)], OCR found a school district in violation of 504 because the school district  asked a preschooler’s grandmother to pay for an aide to accompany the child to an after-school daycare program. The child had cerebral palsy and had difficulties walking, eating, and toileting. The school district claimed it could not afford the additional expense involved in providing the aide.

     The Office for Civil Rights  determined that the district had a duty to provide related aids and services unless to do so would fundamentally alter the nature of the program or create an undue burden. OCR first determined that the presence of an additional staff member to assist the child would not fundamentally alter the day care program. Then OCR determined that the district could not show that hiring an aide would create an undue hardship. The Office for Civil Rights found that the cost of an additional staff person to assist the child was only  $40 to $48 a day and was not an undue financial burden. So, the school district violated 504 and Title II of the ADA when it required the grandmother to pay for an aide to assist the child with toileting. Note that in determining whether it was an undue hardship for the school district to provide the toileting assistance for the child, OCR compares the cost of the assistance to the budget for the entire school district. In that light, an accommodation would have to be very costly to be considered an undue hardship on the school district.

Parent Centers: A resource for training and assistance for families of children with disabilities

 

          It’s back-to-school time and this posting provides information on federally funded Parent Centers that provide training and assistance to families of children with disabilities. My thanks to my long time friend Barbara Buswell, the Director of Colorado’s PEAK Parent Center, for providing this information regarding services provided by Parent Centers in general and the PEAK Parent Center specifically. Among the many valuable services that the PEAK Parent Center provides is its Annual Conference for Inclusive Education.

     The U. S. Department of Education provides federally funded Parent Centers in each state to provide training and assistance to families of children with disabilities in their states.  Every state has at least one Parent Center, and states with large populations may have more. 

     Parent Centers serve families of children ages birth to age 26 with all disability labels – physical, learning, cognitive, behavioral, language, emotional etc.  Parent Centers provide a variety of services including workshops, one-on-one support and assistance, websites, and publications.  The majority of Parent Center staff and Boards are themselves parents of children with disabilities so in addition to their knowledge, they are able to bring personal experience when assisting families.  Parent Centers help families obtain appropriate education and services for their children with special needs and work to improve education results for all children.  They connect families with community resources,  train on a variety of topics (including special education, access to general education curriculum, communication with professionals, accommodations and modifactions, etc.), and help families work to resolve problems with schools and other agencies.  Parent Centers link families with resources and best practice information in special and general education. To find the Parent Center in your state go to the Technical Assistance Alliance for Parent Centers’ website.

    PEAK Parent Center is Colorado’s Parent Training and Information Center (PTI). PEAK is a statewide organization for and by parents of children with disabilities reaching out to assist families and professionals. 

PEAK PTI Services

* Information about the special education process and parents’ rights

* Up-to-date disability information

* SPEAKout newsletter

* Parent Advisors who are available to provide information and resources in English and Spanish, assist families with problem-solving strategies, and direct callers to other community resources by telephone, email to parentadvisor@peakparent.org, or in person by appointment

* Inclusion resources that show how students can be successfully included in general education classrooms

* Referral to medical, educational, community services, and support groups

* Annual statewide conference on Inclusive Education to be held February 11-13, 2010

* Bookstore with current publications to assist families and schools like our “IEP Toolkit”

     In conclusion, Parent Training Centers are a valuable resource for families of children with disabilities. Again, to find the Parent Center in your state go to Technical Assistance Alliance for Parent Centers’ website.

 

Education Secretary Duncan Sends Letter to Chief State School Officers Regarding Seclusion & Restraint in Schools

     Last Friday, July 31st, Secretary of Education Arne Duncan sent a letter to the Chief State School Officers in each state encouraging them to review their state’s “current policies and guidelines regarding the use of retraints and seclusion in schools to ensure every student is safe and protected, and if appropriate, develop or revise its policies and guidelines.” Secretary Duncan referred to testimony before the Education and Labor Committee in the U.S. House of Representatives examining “the abusive and potentially deadly misapplication of seclusion and restraint techniques in schools.” Additionally, Secretary Duncan noted testimony by the Government Accountability Office (GAO) on Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers. My readers are also aware of  the National Disability Rights Network’s Report on seclusion and restraint in schools (see NDRN Releases Shocking Report on Seclusion and Restraint in U.S. Schools).

     Moreover, Secretary Duncan urges states to publicize their policies and guidelines regarding restraint and seclusion “so that administrators, teachers, and parents understand and consent to the limited circumstances under which these techniques may be used; ensure that parents are notified when these interventions occur; and provide the resources needed to successfully implement the policies and hold school districts accountable for adhering to the guidelines.”

      Additionally, the letter encourages the Chief State School Officers to have the revised policies in place before the start of the 2009-10 school year “to help ensure that no child is subjected to the abusive or potentially deadly use of seclusion and restraint in school.” Secretary Duncan says that Department of Education (DOE) staff will contact the offices of the Chief State School Officers by August 15 to discuss the status of their State’s efforts to limit the use of seclusion and restraint. During that contact DOE staff will discuss  “relevant State laws, regulations, policies, and guidance that affect the use of seclusion and restraint, and any plans for further development and revisions.” Finally and notably, DOE expects to post the results of these discussions on its website ”to assist in the sharing of information that will help protect our students.”

     Thus, concerned citizens should be able to track the activity in their states. If there are particular issues in your state regarding the use of seclusion and restraint in your schools, I suggest you notify your State’s Department of Education as well as the U.S. Department of Education of your concerns. Click here to find your State’s Department  of Education.  Secretary Duncan designated Fran Waller of DOE’s Office of Elementary and Secondary Education as the Chief State School Officer contact for this endeavor. Her number is (202) 205-9198 and her e mail is Fran.Walter@ed.gov. It might be worth reviewing the recommendations made in the NDRN Report School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools , to see if your state has those recommendations in place. This is an opportunity to ensure that children are safe in our schools.

President Obama Issues Proclamation on the ADA’s 19th Birthday

     Sunday July 26, 2009 marked the 19th anniversary of the enactment of the Americans with Disabilities Act. President Obama issued a proclamation last Friday July 24th celebrating the passage of this landmark legislation. The President noted that the ADA “established a clear mandate agianst discrimination on the basis of disability so that people with disabilities would have an equal opportunity to achieve the American dream.”

    The President declared that “As we reflect upon the past and look toward a brighter future, we recognize that our country has made great progress. More than ever before, Americans with disabilities enjoy greater access to technology and economic self- sufficiency. More communities are accessible, more children with disabilites learn along side their peers, and more employers recognize the capabilities of people with disabilities.”

    President Obama, however, goes on to note that:

      “Despite these achievements, much work remains to be done. People with disabilities far too often  lack the choice to live in communities of their choosing; their unemployment rate is much higher than those without disabilities; they are much likelier to live in poverty; health care is out of reach for too many; and too many children with disabilities are denied a world-class education.” President Obama then points out some of the actions his Administration has taken to meet these challenges: the “Year of Community Living” to assist people living where they choose, doubling the funding for the IDEA, signing the Christopher and Dana Reeve Paralysis Act and the Children’s Health Insurance Reauthorization Act, and lifting the ban on stem cell research.

     President Bush Sr., who originally signed the ADA into law in 1990, applauded President Obama’s commemoration of the anniversary of the ADA. President Bush Sr. said: “there is no place in our society for prejudice of any kind, yet it is not that long ago when Americans with disabilities were often not given equal rights and opportunites.”

     From my personal perspective, after more than thirty three years representing persons with disabilities, we have come a long way but we had a long way to come. The Education of All Handicapped Children Act (now the IDEA) was passed by Congress in 1975. Section 504 was enacted in 1973 but the Department of Health, Education, and Welfare did not promulgate regulations to clarify and enforce the law until June 1977. The federal Fair Housing Act was not amended to protect persons with disabilities until 1988. Finally in 1990 the Americans with Disabilities Act was enacted. But due to narrow interpretations by the Supreme Court the law had to be amended just last year to reinstate the broader definition of disability that Congress originally intended.

     For someone who was in 6th Grade when the Beatles first appeared on the Ed Sullivan Show, all of this landmark legislation is in recent memory. So, President Bush Sr. is correct when he reminds us that “it is not that long ago when Americans with disabilities were not given equal rights and opportunities.” We should celebrate coming a long way in a short time, while being  mindful that “Despite these achievements, much work needs to be done.”

Happy 19th Birthday ADA! 

Justice Department Issues New Fact Sheet on the Rights of Persons with HIV or AIDS to Obtain Occupational Training and State Licensing

     Yesterday, July 16th, the US Justice Department released a technical assistance fact sheet clarifying the ADA’s requirements relating to admitting individuals with HIV or AIDS to occupational training schools and granting state licensure in occupations such as barbering, massage therapy, and home health care assistance. The fact sheet was necessary because overly broad state licensure requirements that applicants for these occupations  be free from communicable diseases  have unfairly discriminated against persons with HIV or AIDS. In the press release announcing the fact sheet, the Justice Department affirmatively states that HIV is not communicated through casual contact and excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the Americans with Disabilities Act. The fact sheet is intended to provide guidance for state licensing agencies and occupational training schools so that individuals with HIV or AIDS have an equal opportunity to pursue these professions.

    Loretta King, Acting Assistant Attorney General for the Department’s Civil Rights Division, said:

     “People with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears. The Civil Rights Division of the U.S. Department of Justice is committed to the full and fair enforcement of the Americans with Disabilities Act.”

     The new fact sheet is brief, clear, to the point, and can be found on the Department of Justice website.