Posted on July 27, 2012 by randychapman
District’s Indifference to Bullying and Harassment of Student with Asperger Syndrome States a 504/ADA Claim
Posted on July 19, 2012 by randychapman
The school district in Preston ex rel. A.P. v. Hilton Cent. Sch. Dist., 112 LRP 36253 (W.D.N.Y. 07/11/12), claimed that because its staff’s failure to investigate the bullying and harassment of a student was not based on the student’s disability, the parents could not pursue a claim for disability harassment in violation of Section 504 and the Americans with Disabilities Act (ADA). The District Court, however, ruled that the reasons why the staff failed to investigate reports of peer harassment against the high school student with Asperger Syndrome had no bearing on the parent’s 504/ADA claims. This is not surprising when we look at the alleged sordid facts of this case. Please be advised that this article includes offensive language allegedly directed at this student with a disability. I feel it is important to include some of this language in order to accurately relate the bullying the student endured.
The student, A.P., was seventeen and attended Hilton Central High School during the 2009-2010 school year. He has Asperger Syndrome. During that school year he was routinely bullied by students in a Basic Electronics Class, who mocked him daily, including calling him “f*&#ing retard”, “a*#hole”, fag*#t, and “bitch”. They also made comments disparaging his cognitive abilities, such as “F*#* you, you autistic piece of s*#t.” Despite numerous complaints of this bullying behavior in this class and a meeting with the principal, the school did not take meaningful action to get the harassment to stop. Later in the year the student enrolled in a Construction class. In that class he was called “gay,”(and similar slurs) “retard,” “a#*hole,”bitch,” and “loser” during every class. Students also threw pencils and pieces of wood at him. A.P. complained to the classroom teacher, but no action was taken to discipline his tormentors. Eventually, A.P. found it difficult to attend school and his grades dropped by 40% in two of his classes. His parents alleged that A.P. tried to return to his classes, but the bullying and insults continued to the point that he was unable to function emotionally or academically. The parents filed suit for disability harassment under Section 504 and the ADA.
The school district’s attorneys moved to dismiss the case arguing that the school staff did not act solely “by reason of [A.P.'s] disability.” The district court, however, ruled that “liability for discrimination may be imputed to teachers and administrators for students’ peer-to-peer harassment where those defendants displayed ‘deliberate indifference’ to the underlying harassment, where the harassment is itself motivated by discriminatory animus.” The court noted that A.P.’s parents “allege that the cumulative effect of the harassment was that A.P. discontinued attending school, became profoundly disturbed, and was so emotionally crippled that he was unable to return to complete final exams.” Moreover, the parents stated that they notified district employees on multiple occasions of the ongoing harassment, through telephone conversations, e-mail correspondence and sit down meetings. Those individuals, however, “failed to act, acquiesced in the harassment of A.P. by his peers because of his disability, and that the defendants’ alleged conduct had the effect of denying A.P. access to educational opportunities.” Thus, the court denied the school district’s motion to dismiss and the lawsuit and the case, if not settled, will proceed.
Decisions Regarding Students Using Service Animals at School Must be Made by a Group and Consider Individual Circumstances
Posted on July 11, 2012 by randychapman
Section 504 requires that school districts consider a student’s request to bring a service animal to school individually and, like most issues involving students with disabilities, the decision must be made by a group of persons and based upon information from a variety of sources. In Colorado Springs CO School District #11, 56 IDELR 52 (OCR 2010) the Office for Civil Rights determined that the school district’s failure to formally consider whether a service animal was an appropriate accommodation for a high school student with spastic quadriplegia violated Section 504. In this case the student, a freshman in high school, had been accompanied by his dog at school since second grade. In 2009 the school principal banned the dog from the high school because a teacher had significant allergic reactions to the dog’s presence in school. The student’s mother requested an IEP meeting to consider adding the dog to her son’s IEP. While there was not an IEP meeting, there was a meeting of several school staff with the parent. At the meeting the Special Education Facilitator informed the mother that the presence of the dog was not an academic matter and could not be included in her son’s IEP. The mother then filed a complaint with the Office for Civil Rights (OCR).
The Office for Civil Rights determined that the district violated Section 504 because it did not consider the student’s individual needs when it unilaterally decided not to include the dog on the student’s IEP. The school district was mistaken in its view that service dogs are outside the scope of the IEP process. In order to resolve the complaint, the school district agreed to convene a multidisciplinary team to make an individual determination whether the student’s use of the dog was necessary for him to receive a free appropriate public education. Moreover, the district was required to provide training to district staff that service dogs may be included on a student’s IEP or 504 Plan if the multidisciplinary so determines. Additionally, the training must address that multidisciplinary teams will consider information from a variety of sources, including the student’s need for a service dog.
The Office for Civil Rights made a similar determination in Trinity Area (PA) Sch Dist., 56 IDELR 143 (OCR 2010) and pointed out that holding the meeting was not sufficient if the team discussion focused only on the parent’s ability to prove the student’s need for a service animal. In that case the IEP team met but it did not give appropriate consideration to the student’s need for the animal. The student’s parents were the only members of the IEP team who were knowledgable about the use of service animals and the team did not discuss how the dog’s presence might affect the student’s behaviors. Instead, the team focused solely on the effect the dog might have on students and staff with allergies. To be sure, OCR noted, the effect of the dog’s presence on staff and students should be considered, but the team needed to consider the particular student’s needs as well. In another service dog case Bakersfield (CA) City Sch. Dist., 50 IDELR 169 (OCR 2008), OCR discussed that school districts may offer a student alternatives to the use of a service animal, but those alternatives must address all of the functions the service animal performs for the student. Finally, and importantly, all decisions regarding whether to allow a service animal on a school campus must be made on a case-by-case basis, and must be specific to the student and his or her service animal.
Thus, as is generally the case, decisions regarding services for students with disabilities are made by a multidisciplinary team, on a case-by-case basis, and specific to the student and the student’s individual needs.
Posted on July 2, 2012 by randychapman