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.

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.

Office for Civil Rights Issues Guidance on Extracurricular Athletics for Students with Disabilities

Last Friday, January 25, 2013, the Office for Civil Rights (OCR) issued a formal guidance to clarify the 504 responsibility of schools to ensure  that students with disabilities have equal access to participate in extracurricular athletics. In 2010, the Government Accountability Office (GAO) had issued a report that noted the health and social benefits all students derive from participating in extracurricular athletic activities in elementary and secondary schools. Unfortunately, the GAO report found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in schools. To help remedy that concern, the OCR issued this guidance.

The guidance provides an overview of the 504 obligations of public elementary and secondary schools and provides examples and suggestions for helping students with disabilities participate in athletics. The document warns schools against making decisions based on presumptions and stereotypes and discusses providing separate or different athletic opportunities for some students with disabilities.  For example:

• A student has a learning disability and participated in middle school’s lacrosse club. Upon entering 9th grade, her coach is aware of her learning disability and has a preconceived notion that students with learning disabilities would be unable to play under the  time constraints and pressures of an actual game. As a result, she does not play in actual games and the coach feels participating in practice is sufficient.  This violates 504. While the student does not have a right to participate in games, the coaches decision regarding her playing time must be based on the same criteria as other players and not on his presumptions about her disability.   

• A high school student has a hearing impairment and wants to run for the school track team. During tryouts the races are started by a visual cue and the student makes the team. Races during practice are also started with a visual cue. Before the first scheduled meet, the student asks the district to use a visual cue at the meet simultaneously with the starter pistol sounds. But, the district denies the students request and the coach informs him he can only run in practices, not in meets. This violates 504, the use of a visual cue does not require a fundamental alteration in how the meets are conducted.

The guidance offers other examples and discusses offering separate or different athletic opportunities for students with disabilities. For example, school districts are increasingly creating disability-specific teams for sports such as wheelchair tennis or wheelchair basketball. When the number of students at a particular school is insufficient to field a team, school districts can also (1) develop regional teams (2) mix male and female students on team together; and (3) offer allied or unified  sports teams on which students without disabilities participate with students with disabilities.

In conclusion, OCR stresses its commitment to working with schools, students, families, community and advocacy organizations  athletic associations, and others to ensure students with disabilities are provided an equal opportunity to participate in extracurricular athletics  Finally, OCR notes that individuals who believe they have been subjected to discrimination may file a complaint with OCR or in court.

High School Athletic Association must Comply with 504 and Title II of the ADA

In People of the State of Illinois v Illinois High School Athletic Association, 59 IDELR 153 (N.D. Ill 2012), the Office of the Attorney General in Illinois sought an injunction against the Illinois High School Activities Association (IHSA) to require the IHSA to adopt policies and procedures to allow student athletes with disabilities the chance to compete in IHSA-sanctioned events and competitions. In Illinois ninety eight percent of Illinois public and private schools  are included in the IHSA and these schools rely on the IHSA to organize and administer their state championship meets. Moreover, the IHSA regulates all of the interscholastic activities for its member schools including: establishing eligibility criteria for student athletes, determining which member schools can compete, setting the times and dates during which activities can be held, establishing scoring rules and qualifying standards for student athletes, and regulating qualifications for coaches and officials. The IHSA, however, had not promulgated rules that would permit athletes with disabilities to score points in interscholastic meets. Thus, students who have disabilities that prevent them from meeting the existing state qualifying standards are denied the opportunity to compete in IHSA-run state championship meets. When asked to remedy the situation in order not to discriminate against students with disabilities in violation of  Section 504 and Title II of the ADA, the IHSA took the position that it was a private entity and not covered by either of those federal civil rights laws. As a result, the Illinois Attorney General and Equip for Equality, the Illinois Protection & Advocacy System, sued the IHSA.

In the complaint the Attorney General focused upon a particular student’s experience. M.K. was a 16-year-old student with physical disabilities including lower limb paralysis. She needed the use of a full-time wheelchair. She had been swimming with her high school swim team since her freshman year and had participated in local interscholastic track and swim meets. In fact, her swimming times placed her among the top adaptive high school swimmers in Illinois. Her disability, however, prevented her from meeting the qualifying standards that the IHSA sets for swimmers without disabilities. So, she is unable to earn points for her team in these competitions  She was, therefore  excluded from participating in meets on behalf of her high school. Prior to filing the lawsuit, the Attorney General met with representatives of the IHSA and proposed that the IHSA set up exhibition heats and other activities for athletes with disabilities. The IHSA’s executive director expressed concern that the IHSA may be exposed to liability but said the IHSA would respond to the proposal. Instead of responding the IHSA filed suit against the Attorney General, who then sued the IHSA under 504 and Title II of the ADA.

The court disagreed with the IHSA’s position that as a private entity Section 504 and the ADA did not apply to the IHSA. Section 504 applies to entities that receive federal financial assistance. The IHSA moved to dismiss the case, arguing that it received no such assistance. The Attorney General responded that the IHSA received federal assistance indirectly from its member school districts. Moreover, the IHSA argued that Title II of the ADA did not apply to it because it was not a public entity. The court determined that since 98% of Illinois schools are members of the IHSA  the Attorney General had alleged sufficient facts for the case to go to trial.

After failing to get the case dismissed, the IHSA settled it in September of 2012. The settlement agreement allowed swimmers with disabilities to compete in the 50 yard, 100 yard, 200 yard freestyle and the 100 yard breaststroke.

Massachusetts District Violates 504 by Not Meeting Student’s Assistive Technology (AT) Needs While AT Device is Being Repaired

     A Massachusetts School District violated a student’s 504 Plan by not providing training for staff on how to use an FM sound amplification system and not providing a back-up device for a student with a hearing impairment while the original device was being repaired. In Bellingham (MA) Public Schools, 59 IDLER 142 (OCR 2012) the school district developed a 504 Plan for a student with a hearing impairment. The initial plan was developed during his fourth grade year in elementary school and included: preferential seating; oral directions and instruction should take place so that the speaker is facing the student; gain the student’s visual attention before providing instruction or directions; provide a specified area in which the student can work if requested/needed; check to see that the student understands directions; clarify if necessary; and the use of an FM system for amplification. The school guidance counselor was responsible for communicating the 504 plan to the student’s teachers and she did so by placing a copy in their mail boxes. She did not provide the teachers with any instructions on how to use the FM system. The student used the system through his fourth grade year, but in fifth grade, during the student’s first year of middle school, problems began.

     The middle school teachers did not know how to use the device or how to “sync” it. The principal arranged for the speech language pathologist to teach the principal, the school nurse, and the guidance counselor how to synchronize the system. However, the FM device only worked intermittently and eventually was sent to be repaired. The student went months without the FM device. During that time no one checked with the student to determine how not having the device was affecting him. Moreover, no one made any effort to compensate for the unavailable system.

     As a result, the student’s mother noted that he often came home crying because he had missed the teacher’s instructions, particularly during the confusion at the end of a school day. The mother called his friends to check on his assignments. Frustrated, she filed a complaint with the Office for Civil Rights (OCR) alleging a violation of 504.

     The school district explained to OCR, that since the student had continued to maintain “A” and “B” grades while the FM device was unavailable, they felt he was not affected by the district’s failure to follow his 504 Plan. The Office for Civil Rights, however, agreed with the student’s mother that his maintenance of good grades was due to his own diligence. Thus, the OCR determined the district’s failure to implement the 504 Plan and failure to implement mitigating measures denied the student a free appropriate public education and violated 504. To resolve the complaint the school district agreed to:

• Review the student’s 504 Plan at the beginning of the following school year;

• Clearly designate what accommodations are always supposed to be provided and what accommodations are supposed to be provided in the event the FM system is not working;

• Ensure that the plan includes a provision for checking in with the student about the provision of services if the FM system is not working and provide training on the FM system to all of the student’s sixth grade teachers.

     The lesson for school districts from this case is to develop a back-up plan for what to do if the device breaks. School districts and 504 planning teams should anticipate that AT devices will break and determine, ahead of time, where the device can be repaired and what to do in the interim. Good communication between parents and school staff can help avoid and/or resolve disputes. So, as part of the 504 Plan, involve parents in devising the back-up plan. Finally, school districts should not rely solely on the adequacy of a student’s grades in determining eligibility for services or the impact on the student when required services are not provided.

On 39th Anniversary of 504 OCR Issues “Disability Rights Enforcement Highlights”

     On the 39th Anniversary of the passage of Section 504 of the Rehabilitation Act the Office for Civil Rights (OCR) within the U.S. Department of Education has published Disability Rights Enforcement Highlights. This 21 page publication provides a good overview of OCR’s role in protecting the rights of students with disabilities under Section 504 and Title II of the ADA. It discusses what is a disability, the IDEA and 504, and focuses on the following seven different issue areas: Free appropriate public education, discipline, academic adjustments, accessibiltiy of technology, physical accessibility of programs services & facilities, harassment/bullying, and right to equal treatment.

     The booklet provides specific case examples in each of these issue areas and provides interesting statistical data regarding OCR’s work. For example, in the fiscal years 2009 through 2011, OCR received over 11,700 disability-related complaints. This is more than ever before in a three-year period. Moreover, while OCR also investigates complaints based on discrimination due to race, color, national origin, sex, and age, more than 55% of the complaints OCR received in this three-year period involved disability issues. Looking at some of the specific issue areas: 4,600 cases involved a denial of a free appropriate public education, 750 involved Discipline issues, and 1,000 complaints were based on Disability Harassment. Moreover, the Office for Civil Rights noted that students served under the IDEA were twice as likely to be suspended out of school as their classmates without disabilities.

      Again, the OCR provides specific case examples in each of these issue areas. The booklet provides the following sad case example regarding disability harassment. A high school student with Fragile X Syndrome, Asperger’s Syndrome, Tourette’s Syndrome and ADHD was verbally ridiculed be her fellow students about her disability-related body odor, sprayed with an air freshener by staff in front of her classmates, detained by staff in school who made her take showers before allowing her to attend class, and pulled out of class and sent home before the end of the school day because of her body odor. After OCR’s involvement, the school agreed to provide training to staff about 504 and the student’s disabilities, enroll the student in its “Senior Life Skill”s course, provide her with weekly social work services, and help her find a community job.

     As noted earlier, this publication provides similar specific case examples in each of the issue areas.  I commend this booklet to you. I think it will help clarify the vital role OCR plays in protecting the rights of students with disabilities.

School District Could Not Rely Solely on Good Grades When Determining 504 Eligibility

In Cabarrus County (NC) Schs., 59 IDELR 113 (OCR XI, D.C. (NC) 2012), the Office for Civil Rights (OCR) determined that a North Carolina school district may have mistakenly determined a 14 year-old student with a traumatic brian injury (TBI)  ineligible for services because it only looked at his grades and did not consider information from a variety of sources regarding his educational experience. The student had been hit by a car and as a result suffered severe headaches, memory loss, dizziness, and nausea. He also had problems concentrating and paying attention. His mother provided the school district with a neurologist’s prescription for a 504 Plan. The district, however, determined that the student did not have a disability and was not eligible for a 504 Plan. The school district based its decision solely on the student’s satisfactory grades, standardized test scores, and data from two classroom observations. The OCR determined that, while that information is relevant, the district failed to gather other necessary information from the student’s parents, medical providers, and other teachers.

Consequently, the school district did not consider the impact of his injury on major life activities other than learning. In order to have a disability under Section 504 an individual must have a physical or mental impairment that substantially limits one or more major life activities. Learning is one major life activity, but there are other major life activities. Since it only considered the student’s grades, the district failed to conduct tests on the student’s memory, concentration, or cognitive functioning. These tests are routinely conducted as part of a neuropsychological assessment that can assist in determining the impact of a TBI on educational performance. Moreover, the district never considered whether the student needed psychological or other testing. Thus, the school district did not have the necessary information from a variety of sources to make an accurate determination of the student’s eligibilty under Section 504.

To remedy the violation, the school dsitrict agreed to re-evaluate the student’s 504 eligibilty using the appropriate additional information. The student’s eligibility will be determined by a team of knowledgable people. If the student is determined eligible, the team will also consider whether any compensatroy servces are necessary for the time the student has been without support services. The team will also calculate the amount of compensatory services and develop a plan to provide the compensatory services. Finally, the school district will provide training to its staff regarding  the definition of disability under Section 504, evaluating students under Section 504, and Section 504′s placement requirements.

US Department of Education Provides Bullying Prevention Toolkit for Teachers

     On September 28, the United States Department of Education released a free training toolkit for classroom teachers to use to reduce incidents of bullying. The toolkit was developed by the Safe and Supportive Schools Technical Assistance Center. The toolkit has two parts. Module One provides step-by-step instructions for conducting workshops with teachers, educators, and school personnel who work with students. The instructions include a preparation guide, trainer’s outline and focus on:

Understanding what bullying behavior is and is not

Understanding what bullying behavior may look like in the classroom

Exploring ideas for responding to bullying behavior; and

Becoming equipped with specific strategies for addressing and reporting behavior bullying

     Module 2 then provides state-of-the-art information on how to build a supportive classroom climate. According to the Department of Education, “research shows that classrooms that have strong relationships and are respectful of diversity have less bullying.” Participants in Module 2 will:

Consider what a supportive classroom climate looks like and how it can prevent bullying

Examine the role of teacher-to-student and student-to-student relationships in building a supportive classroom climate

Explore strategies for preventing bullying in the classroom, including establishing a culture of respect for differences among students

Consider how a web of positive support among students and other adults across the school community can help prevent bullying.

     The Department of Education concludes its press release by noting that more than 33 percent of students who are bullied report it happening in classrooms and only 55 percent of teachers have received training on bullying policies at their schools. This toolkit will help provide that training.

Justice Department Settles with Pennsylvania School for $715,000 for Excluding a Child with HIV

On September 12, 2012, the U.S. Department of Justice (DOJ) announced that it and the AIDS Law Project of Pennsylvania have reached a settlement with the Milton Hershey School (School) of Hershey, Pa to remedy alleged violations of the Americans with Disabilities Act (ADA). The Milton Hershey School is a private residential school that is open year-round and serves children with demonstrated social and financial needs. In April 2011 Abraham Smith (a pseudonym) applied for admission to the School’s 8th grade class. Abraham is a boy with HIV, which is a physical impairment that substantially limits one or more major life activities, including the operation of Abraham’s immune system. Thus, Abraham has a disability under the ADA. Abraham provided  information to the School that was required in the application process. Included in that information were documents that disclosed that Abraham had HIV.

The School responded by informing his mother through a letter that stated Abraham Smith ”will not be considered for possible enrollment” and “[a]fter a review of the information, it has been determined that [Abraham's] documented needs are beyond the scope of the Milton Hershey school programs. Specifically, we are unable to meet his needs in a residential setting.” Abraham’s mother contacted the AIDS Law Project of Pennsylvania (ALPP) which contacted the School to, again, request his admission. In its response to the ALPP,  the School acknowledged that it had not processed Abraham’s application because he has HIV. The ALPP then filed suit.

The School responded in its answer to the lawsuit and an investigation by the DOJ that it believed Abraham posed a potential risk to other students at the School. The DOJ rejected that defense, determining that Abraham or other children with HIV did not pose a direct threat to the health or safety of others and the School violated the ADA by rejecting him for admission.

The Settlement Agreement requires the School to pay $700,000 to Abraham and his mother. It also requires the School to adopt a policy prohibiting discrimination and requiring equal opportunity for students with disabilities, including students with HIV. Additionally, the School must provide training to staff and administrators on the requirements of the ADA. Finally, the School must pay a civil penalty of $15,000 to the United States.

District’s Indifference to Bullying and Harassment of Student with Asperger Syndrome States a 504/ADA Claim

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.