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.

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.

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.

Bus Suspension Requires MDR Even if Parent Drives Student to School

Melody Musgrove, the Director of the Office of Special Education Programs (OSEP) provided guidance regarding a school district’s obligation to conduct a manifestation determination when a child is suspended from school bus services [Letter to Sarnznyski 59 IDELR 141 (OSEP 2012)]. The student’s IEP included transportation as a related service. The student was suspended from the bus but his in-school services were not interrupted or changed. Ms. Musgrove was asked whether a 10 day suspension from bus services was sufficient to trigger a manifestation determination if the other IEP services were uninterrupted because the parent drove the student to school during the bus suspension?

The answer is “Yes.” If the student is suspended from transportation services that are included in the IEP for more than 10 consecutive school days, that is a change in placement requiring a manifestation determination. This is true even though the student’s parent provided transportation. Moreover, if the student had previously been suspended, in that school year, from the bus, those days of suspension also count towards the 10 days that trigger a disciplinary change in placement. Thus, a series of disciplinary removals from bus services totaling more than 10 days in the school year trigger the IDEA discipline procedures, including the manifestation determination review.

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.

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.