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.


School Psychologist’s Assumption Student’s Poor Performance Was Marijuana-induced Laziness Causes Problems for Texas District

In Fort Bend Independent School District v. Z.A. Douglas A. 62 IDELR 231 (S.D. Tex. Jan 29, 2014), a school psychologist terminated a teenage student’s counseling sessions after just one session because the counselor assumed the student’s educational issues were due to marijuana use rather than the after-effects of the student spending four years in a Russian orphanage and severe depression and anxiety. The student had been abandoned at the age of 4 months and spent the next four years in an orphanage until his parents adopted him. He was  diagnosed with ADHD and determined eligible for IDEA services as a student with an emotional disturbance.  It was known that he smoked marijuana and he displayed an extreme lack of focus and refused to do school work. The school district developed an IEP that included weekly counseling sessions and classroom modifications. Unfortunately, the school counselor ended the counselling sessions and referred the student to a drug counselor based on the psychologist’s determination that the student’s school difficulties were caused by marijuana induced laziness.  Concerned that their son’s behavior was escalating the parents placed him in a residential facility where he was diagnosed with RAD (reactive attachment disorder). The parents then filed for due process to obtain tuition reimbursement. The hearing officer determined the district had denied the student a free appropriate public education and ordered it to partially pay the facility tuition at $7000 a month. The school district appealed arguing it was unaware that the student had RAD.

The district court determined the district may have been unaware of the RAD,  but it was aware of the student’s anxiety and depression and their impact on his ability to access learning. The district did little to address those issues  and, although the IEP required counseling, the counselor had unilaterally terminated the weekly sessions and referred the student to a drug counselor. The court held that by failing to address the student’s learning-linked depression and anxiety, the school district had failed to provide a program reasonably calculated to enabler the student to receive meaningful educational benefit.


Vague IEP Description of Assistive Technology (AT) Impeded Students Access to writing technology

Parents, advocates, and educators frequently ask how much detail is required when writing a service on an IEP. Here’s a case that helps answer that question. In Minneapolis Special School Dis. #001, 62 IDELR 276 (SEA MN 2013), the Minnesota State Education Agency (SEA) found that AT services on a student’s IEP were too vague to be implemented.  The student’s IEP stated that he needed assistive technology for his written work but only indicated that “a tape recorder is an option that could be tried” and that “a portable word processor with predictive language software, can be available to him.” After the student refused to use the the school’s portable word processor, the parents filed a due process complaint.

The Hearing Officer ruled for the parents, explaining that the school staff responsible for implementing the IEP must be informed of their specific responsibilities and must be informed of the specific accommodations the student needs. Here, the district failed to identify what particular assistive technology the student needed and how to incorporate the technology into the student’s curriculum. The IEP provision was so vague it “left the implementation of the adaptations open to the subjective interpretation of the student’s teachers and the parties.” Additionally, the IEP failed to describe and explain to the school staff their specific responsibilities and duties regarding the student’s modified curriculum and required accommodations. This violated the IDEA. The school district was ordered to provide compensatory services for the student and to train its staff in how to properly develop and implement future IEPs.

In light of student’s increased absences, the School district should have revised her 504 Plan

In San Diego Unified School District, 113 LRP 15333 (OCR 01/31/13) a California school district learned that a 504 Plan is not a static document and if there are indications that a student’s disability related needs have changed, the school district should consider revising the 504 Plan. In this case the student has serious medical conditions and was missing a lot if class time. The school district developed a 504 Plan that included extra time in assignments, exemption from PE, and a pass to see a nurse when she felt ill. Despite these accommodations, the student’s health continued to hinder her attendance and academic performance. Rather than revise the 504 Plan, school administrators told the parent, she should look for an alternative setting for the student. They explained that this high school was a “comprehensive high school” and that other district schools “typically deal with more challenged, health related anomalies.”

After an independent evaluator diagnosed the student with dyslexia and dysgraphia, the parent  requested changes in the 504 plan to address the new diagnoses. The school district, however, believed these were only mild forms of these conditions and refused to change the 504 Plan.The parent then hired a private tutor to assist her daughter and filed a complaint with the Office for Civil Rights (OCR) for violations of 504. OCR determined that as the student’s attendance and academic performance continued to deteriorate, the district should have reviewed and modified the 504 Plan. Here, the district could have offered home tutoring or other services to assist the student with keeping up with her assignments when her health required she stay home. The Office for Civil Rights noted that instead of reviewing and modifying the plan, the school put the burden on the student and her family to look for another school to more accustomed in “dealing with more challenged, health related anomalies.” Again, 504 Plans are not static documents and must be reviewed and modified as a student’s needs change.


Recent OCR School Service Animal Resolutions

     This post will provide a summary overview of several recent Office for Civil Rights (OCR) resolutions involving students with disabilities  and service animals.

      In  School Admin. Unit #23 (NH), 113 LRP 32108 (OCR 05/22/13), resolved a complaint with a New Hampshire school district regarding a dog that alerted when the student was having a seizure. The school district agreed to train two aides in how to handle the dog. Moreover, the district agreed to revise its service animal policies and procedures, train staff on how to respond to the presence of service animals, and publish the approved policy on the district’s website and in student handbooks.

     In Catawba County (NC) Schs.,61 IDELR 234 (OCR 2013) the school district had refused to allow a student with self injurious and eloping behavior to bring his service dog to school. The dog was trained to help calm the student when he was having a “meltdown” and to retrieve him when he eloped from the school grounds.The principal and superintendent refused to permit the dog to accompany the student to school on the basis that its presence would “fundamentally alter the program and services of the school system.” OCR, however, determined that the dog would not interfere with the student’s IEP goals and would help him cope with his aggression. In its findings OCR noted that the principal had stated “I do not know what the dog does” and the superintendent didn’t know the dog’s function either. Thus, these two administrators had not bothered to learn why the student needed the animal. The district agreed to facilitate the student having the dog at school.

 Jackson County (MI) Intermediate Sch. Dist., 59 IDELR 172 (OCR 2012), a Michigan district decided that the tasks a service animal performed — helping the child with balance and support, retrieving dropped items, and taking off her coat — were already performed by an aide. Thus, there was no need for the student, an 8 year old girl with cerebral palsy, to have the animal with her at school. OCR determined that since one of the purposes of Title II of the ADA was to promote independence of persons with disabilities and, here, the service animal assisted the girl in being more independent, denying her the use of the animal was a violation of 504 and the ADA. To address Section 504 and Title II compliance concerns, the district agreed to develop a plan to fully and effectively integrate the student’s service animal into the school environment and to allow the animal to accompany the child during all school-related activities.

     Finally, in Alpine (CA) Union Elem. Sch. Dist., 112 LRP 49101 (OCR 07/19/12) a California school district agreed to resolve a complaint that it had not allowed a student with a disability to be accompanied by his service animal at end of the school year celebrations. As a result, the student had not had an opportunity to equally participate in those activities. To resolve the complaint, the district voluntarily entered into a agreement which commits to the following: 1) revising its service animal policy and Section 504 policy; 2) providing training on for all district staff regarding Section 504 and service animals; and 3) providing a letter to the student. The district further agreed to submit draft policies regarding service animals and Section 504 to OCR for review. Finally, the district will provide OCR with documentation regarding the district-wide training on service animals and Section 504.


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