Protection from Retaliation

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

    

A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed. 

      Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities. 

     As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced.  Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.

Denying Qualified Students with Disabilities Access to Accelerated Programs Violates Section 504 and Title II of the ADA

  Apparently, some schools or school districts have refused to allow qualified students with disabilities the opportunity to participate in challenging academic programs such as Advanced Placement or Baccalaureate classes or other accelerated programs. Moreover, some schools and school districts have required that students with disabilities give up their specialized services in order to participate in these accelerated programs. Thus, on December 26, 2007 the Office for Civil Rights (OCR) issued a Dear Colleague letter advising educators that these actions violate Section 504 and Title II of the Americans with Disabilities Act and if reported will be investigated by OCR. 

  Both Section 504 and Title II of the ADA protect qualified students with disabilities from discrimination based on disability. Schools, therefore, may not use criteria or administer programs in a manner that has the effect of discriminating against students with disabilities.  To be sure, schools are not required to admit students, including students with disabilities, to accelerated programs who do not meet the criteria for acceptance into the program. But if a student with a disability meets the criteria, denying admission based on disability violates 504 and the ADA.  

  The OCR letter also makes the point that participation by a student with a disability in an accelerated program would generally be considered part of regular education or regular classes under Section 504 or the Individuals with Disabilities Education Act (IDEA). Thus, if a student needed related aids and services to participate in the regular accelerated program, the school cannot deny the student those services. For example, if the student needed Braille materials, extended time on tests, or the use of assistive technology, like a computer in order to take notes, the support services must be provided. 

  Finally, the OCR letter clarifies that if a student needs special education or related aids and services, schools may not require students to give up those services in order to participate in the accelerated program. Both Section 504 and the IDEA require an individualized determination of a student’s educational needs. That determination may result in a decision that the student requires related aids and services in order to participate in the accelerated program. Schools may not ignore the student’s individual needs and automatically deny the student the needed services in an accelerated class or program.

Supporting Students with Disabilities After High School: Providing Academic Adjustments and Auxiliary Aids and Services in Postsecondary Schools

  While in preschool, elementary and high school children with disabilities are entitled to a free appropriate public education under the Individuals with Disabilities Education Act (IDEA)  and Section 504. The public schools have an affirmative obligation during those school years to assess and identify children with disabilities and develop a plan to meet their individual educational needs. But what is the obligation of colleges and other post secondary education programs to students with disabilities after the high school years? Title II of the Americans with Disabilities Act (ADA) and Section 504 (for programs receiving federal support) require that post secondary schools (including postsecondary vocational programs) ensure that qualified students with disabilities have an equal opportunity to participate in the postsecondary school’s program. To that end, postsecondary schools are required to make appropriate academic adjustments and to provide qualified students with disabilities with the auxiliary aids and services needed to ensure equal access to the school program. 

Who are qualified students with disabilities?   

   Postsecondary schools are not obligated to admit persons with disabilities to their programs who do not meet the requirements for admission. A student is “qualified” if the student meets the academic and technical standards required for admission to the school program. A student who is qualified and has a disability cannot be discriminated against based on their disability. A student has a disability if the student has a physical or mental impairment that substantially limits a major life activity. 

What are the responsibilities of the postsecondary school?  

   The postsecondary school cannot discriminate on the basis of a student’s disability. This means the school needs to take steps to make sure the student is not denied the benefits of the school program, excluded from participating in the school program, or otherwise discriminated against. The nondiscrimination protection of the ADA and 504 apply to all aspects of the postsecondary program including financial aid, housing, nonacademic services, and academic course related services. Included in nonacademic services are physical education, club and intramural athletics, social organizations like fraternities and sororities, and counseling and placement services.  Regarding the academic program, the school must make modifications to its academic requirements if those requirements have the effect of discriminating based on a student’s disability.

   Examples of these modifications are changes in the length of time permitted for completing a degree, extended time for testing, arranging for priority registration, reducing course load, substituting specific courses needed to complete a degree, and adapting how specific courses are conducted. But the school is not required to make academic adjustments that lower or substantially modify essential academic requirements. For example, a student may be entitled to extra time on a test, but not a change or lowering of the substantive content of the test. Finally, the school must also provide appropriate auxiliary aids and services to afford the student equal access to the school program. 

What are auxiliary aids and services?   

   Examples of auxiliary aids include: taped texts, note takers, interpreters, readers, videotext displays, television enlargers, talking calculators, electronic readers, Braille, calculators, telephone handset amplifiers, closed captioned decoders, specialized gym equipment, calculators or keyboards with large buttons, reaching devices for library use, and assistive listening devices. 

  The purpose of providing the auxiliary aid is to ensure equal access and participation for the student with a disability. Thus, the auxiliary aid needs to be effective. Not all students with similar disabilities will benefit from the same auxiliary aid. So, in order for the auxiliary aid to be effective, it should be selected individually and the student should participate in the selection.

 What about the cost of the auxiliary aid? Is the postsecondary school’s obligation unlimited?  

           If the student needs the aid to have equal access to the academic program, the school must provide the aid at no cost to the student, unless providing the aid would cause an undue burden on the school. Undue burden means that in light of the school’s overall size and budget, providing the auxiliary aid or modification would be significantly difficult or expensive. Given that the cost of the aid is compared to the overall budget of the school, in most cases, providing the aid will not be considered an undue burden on the school. 

What about attendant care and other personal aids and services?   

  Postsecondary schools and programs are not required to provide aids and services to students that are personal. Personal aids and services include help in bathing, dressing, or other personnel care. Thus, postsecondary schools are not required to provide personal attendants or individually prescribed devices, such as eye glasses. A service may be personal in one context, but required in another. For example, the school may be required to provide a “reader” to a student during classroom instruction, but would not be required to provide the reader for personal use or during individual study time. 

What are the student’s responsibilities?

  A student with a disability who desires a modification in the postsecondary school’s requirements or desires an auxiliary aid must notify the school of the nature of the disability and help identify the appropriate auxiliary aids and academic adjustments. While in elementary and high school, the public schools are required to assess and identify students with disabilities and to determine appropriate aids and services for the student. But after high school the student takes on that responsibility. The student should inform the appropriate office or individual at the school that the student has a disability and needs a modification to the program or an auxiliary aid or service. Most postsecondary schools will have an ADA or 504 Coordinator who is responsible for assisting students with disabilities and many schools have a specific office of disability services. The student is responsible for finding out the school’s process for granting an academic adjustment or providing auxiliary aids and services and following through on that process.  

  As part of the process, the school can require that the student provide documentation of the disability and support for needing the auxiliary aid or academic adjustment. If the student received special education services and had an IEP while in high school, or the student had a 504 plan, the student’s IEP or 504 plan may provide adequate documentation. Specifically, the IDEA requires that students in special education are provided a summary of performance if the student graduates with a regular diploma or ages out of special education services. The summary of performance includes recommendations on how to help the student meet postsecondary goals, so it might be a useful tool  for documenting the student’s need for academic adjustments or auxiliary aids after high school. Postsecondary education, however, has different demands than high school, and additional documentation or assessments may be needed. The postsecondary school is not required to pay for those additional assessments.  

   If the student’s disability is a barrier to the student becoming employed, the student might be eligible for vocational rehabilitation services from the state vocational rehabilitation agency. In that case, the state vocational rehabilitation agency may pay for the cost of evaluation. Vocational rehabilitation agencies are also a resource for other services to support individuals with disabilities in obtaining employment, including support in postsecondary educational programs. It might, therefore, be very useful for students with disabilities to contact their state vocational rehabilitation agency for assistance. 

What does the student do if the school denies the request for a modification or provision of an auxiliary aid? 

  As noted, most postsecondary schools have a 504/ADA coordinator and all schools are required to have grievance procedures. The student with a disability might start by contacting the 504/ADA Coordinator and/or getting information on the school’s grievance process. Students can also file a complaint with the Office for Civil Rights within the U. S. Department of Education. The student might choose to go through the school’s internal grievance process before filing a complaint with the Office for Civil Rights, but the student has a right to file the complaint without first using the grievance process or waiting for its completion. Individuals with disabilities also have a right to file a lawsuit for violations of the ADA and 504.                    

Sticks and Stones can Break Your Bones But Words can Break Your Heart: Preventing Disability Harassment in Schools

Jeremy was in tears and Brenda’s temperature had reached the boiling point. Jeremy was in 7th Grade and used a wheelchair. Everything at school had been fine until the new the new kid transferred in. The new kid had started calling Jeremy the “crip”. Jeremy could handle some kidding about his using a wheelchair, but there was a mean and ridiculing tone to the way the new kid called Jeremy “crip”.

At first, Brenda, as the patient and wise mother, had counseled Jeremy to just ignore the new kid; with time, the teasing would stop. After all, sticks and stones could break your bones, but words could never hurt you. But, a few of the other kids thought the new kid was cool and began calling Jeremy “crip” as well. It had gotten so bad that Jeremy no longer looked forward to going to school. Brenda had complained to the school principal, but his response had been boys will be boys and Jeremy probably needed to get used to the “real world.” In the real world people get teased. Brenda knew that people got teased in the real world, but she expected some adult control of this behavior.  Today, the new kid had placed some chairs in front of the accessible rest room door and Jeremy hadn’t been able to maneuver his wheel chair to get into the rest room.

Fortunately, one of Jeremy’s friends saw the predicament and moved the chairs just before Jeremy had nearly wet himself. Jeremy was hurt and very embarrassed. 

Because of the Individuals with Disabilities Education Act, children with disabilities successfully go to school with children without disabilities. But sometimes, incidents like this one, in which students with disabilities are picked on because they have a disability, do occur. There are two federal laws, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) that prohibit discrimination against students with disabilities. These laws require school districts to make sure that the school environment is free from abusive and intimidating behavior towards students with disabilities  by students or school staff. This kind of behavior is considered disaibility harassment. The following are answers to some frequently asked questions regarding disability harassment in school. 

1.     What is disability harassment?

Disability harassment is intimidating or abusive behavior toward a student based on a disability. This behavior can create a hostile environment in the school and deny a student equal access to the school program. Harassing a student based on the student’s disability violates Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Under these laws schools have an affirmative obligation to make sure that students are not harassed because they have a disability.

 2.     What are examples of disability harassment?Calling students with disabilities names, drawing pictures or writing statements, or other conduct that is physically threatening, harmful, or humiliating to the student with a disaibility is considered disability harassment. For example: 

● students continually referring to a student with dyslexia as dumb;

 ● students repeatedly placing classroom furniture in the way of a student who uses a wheelchair;

● a school administrator denying a student with a disability access to lunch, field trips, assemblies and extracurricular activities as punishment for the student taking time off from school because the student needed to attend therapy sessions or a medical appointment;

 ●Students continually taunting or belittling a student with mental retardation by mocking or intimidating the student;

●A teacher belittling or criticizing a student with a disability because the student uses accommodations in class.  

3.     What should a parent do if they feel their child is being harassed?

The parent should first contact the school principal to discuss the harassment. If the harassment continues, the parent should contact the Section 504/ADA Coordinator for the school district. Section 504 and the ADA require that school districts designate an individual to coordinate the school district’s compliance with these two federal laws prohibiting discrimination based on disability. The 504/ADA coordinator should be able to help the parents resolve the harassment. Parents may also contact the Office for Civil Rights (OCR) within the United States Department of Education. The Office for Civil Rights is the federal agency that is responsible for enforcing Section 504 and the ADA in the public school system. Parents can obtain more information regarding the Office for Civil Rights and disability harassment, including how to file a complaint, through its website at www.ed.gov/ocr .  

 4.     How can schools and school staff prevent disability harassment?

School districts should have a clear policy prohibiting disability discrimination. The policy should specifically describe disability harassment and clearly state that it is unacceptable. School staff should be trained in how to recognize and handle potential disability harassment. Moreover, parents, students, teachers, and other school staff  should be encouraged to discuss disability harassment and report it if it occurs. The school district should have a clear grievance process to be used by students, parents, educators and others if they think an individual is being harassed due to their disability. The school district should widely publicize the procedures for handling disability harassment so that students, parents, school employees, and the community are aware of what disability harassment is, that disability harassment will not be tolerated, and where and how complaints involving disability harassment are handled.  Finally, if the school district receives a complaint about disability harassment, the school district should make sure that the harassment ends immediately. In order to resolve the issues, the school might support the student who has been harmed by providing counseling and also counsel the individual or individuals  responsible for the harassment. The district should put in place a monitoring or follow up program to make sure the harassment is resolved. 

  In the last thirty years children with disabilities have become more   integrated into our public school system. Students and teachers have learned to appreciate that we all have differences. Sometimes, however, individuals are picked on because they are different or have special needs. Federal law requires that schools make sure that students are not picked on, or harassed, because they have a disability. Sticks and stones can break your bones, but words can break your heart. When those words harass a student based on the student’s disability, they also break the law.

Opening the School Door to Section 504

Brenda should have been excited. Her daughter Jessica would be starting kindergarten this fall. Jessica was smart as a whip and couldn’t wait to go to school. But Jessica had diabetes. The diabetes needed managing: she needed insulin administered and her blood glucose and diet monitored. When she got older Jessica would be able to manage the diabetes herself, but right now she was just too young.  Maybe Brenda could go to school with Jessica. But Brenda worked. Maybe if the school had a nurse, the nurse could help Jessica. But what if there wasn’t a nurse or the nurse was too busy? Brenda knew that kids with disabilities could get special services, but Jess had an illness not a disability. She certainly didn’t need special education. Was there anything Brenda could get the school to do?          

 Brenda called the school principal, Ms. Otero. Ms. Otero understood Brenda’s concern, but said not to worry. While Jessica may not need special education, her diabetes might be a disability under a law called Section 504. The school could develop something called a Section 504 Plan. The Section 504 Plan could include a nurse, or someone a nurse trained, monitoring blood glucose and administering insulin. Finally, Ms. Otero said that the “Section 504 Coordinator” would call Brenda to start the ball rolling to get Jessica these services. 

Schools and Section 504 of the Rehabilitation Act  

There are three federal laws that support students with disabilities in the public schools: the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. The first, the IDEA, requires schools to provide a free appropriate publication education to students with disabilities who need special education and related services. Under the IDEA a child must have an impairment and need special education services to be considered a child with a disability. But under the other two laws, Section 504 and the ADA, a child can have a disability without needing special education.  Section 504 and the ADA protect people with disabilities from discrimination based on their disability. Regarding the public schools, these laws prohibit discrimination against students with disabilities. This means that schools must provide services to meet the individual needs of students with disabilities as adequately as the schools meet the needs of students without disabilities. These services are outlined in a Section 504 Plan.  The following are questions and answers regarding Section 504 and the public schools. The ADA has the same definition of disability and the same requirements regarding public school services to students with disabilities. 

1.     What is a disability under Section 504?

A person has a disability if they have a physical or mental impairment that substantially limits a major life activity. Life activities are functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. All children who need special education under the IDEA also have disabilities under Section 504. But a child may have a disability under Section 504 and not need special education services.  For example, students, like Jessica, who have illnesses such as allergies, cancer, heart disease, high blood pressure, ulcers, kidney and liver disease, epilepsy, HIV/AIDS, or diabetes would be covered under Section 504. Other examples include children who have a limp, paralysis, arthritis, hearing loss, learning disabilities, attention deficit disorder, traumatic brain injuries, speech impairments, mental illness and visual impairments.

 2.     How do parents get Section 504 services for their child?

Complying with Section 504 is a general education responsibility just like complying with other laws prohibiting discrimination based on race, religion, or ethnic origin. Section 504 requires that school districts identify a “Section 504 Coordinator”. Parents should contact the school administration to identify their district’s 504 Coordinator. 

3.     How is Section 504 eligibility determined?

Parents can contact the school staff to begin the Section 504 evaluation process. First, the school will evaluate the child based upon the child’s needs. Then, the evaluation information will be reviewed to determine if the student has a disability. Eligibility is decided by a group: not just one individual. The group will be people who know the child, what the evaluation information means, and how to serve students with disabilities.  

4. What services are required under Section 504?

The school must provide the student a free appropriate public education. This means providing services to meet the individual needs of the student with a disability as adequately as the school meets the needs of students without disabilities. Schools are not required to lower standards for students with disabilities by changing the instructional level, content, or performance criteria. But Section 504 does require that schools provide students with disabilities an equal opportunity to demonstrate their knowledge and skills. Thus, a student who is blind or has difficulty taking tests might be entitled to a Braille copy of a test, shorter testing sessions, or extra time to take the test. But the content of the test is the same as the test provided to students without disabilities. Other examples of  Section 504 services include: 

● Providing a student who has cancer with a modified schedule that allows for rest and recuperation following chemotherapy;

●Providing a student who has a learning disability or visual impairment with a note-taker or tape recorder;

● Providing a student who has arthritis with a modified or adaptive physical education program;

● Providing a student with an emotional illness with an adjusted class schedule to allow time for counseling;

● Providing a student who has a physical impairment and has difficulty walking distances or climbing stairs with extra time between classes, relocated classes, and special parking.         

5.     What is a Section 504 Plan?

A Section 504 Plan is a plan developed by a team, including the parents, who know the student’s needs and how to serve students with disabilities. The plan documents the student’s disability and the services required to ensure the student has equal access to the school program.Jessica’s Section 504 Plan would document that her diabetes is a disability. Her plan would include who would monitor her glucose and administer her insulin. It might also include a plan to train school staff in a basic understanding of diabetes, Jessica’s diabetes related needs, how to identify medical emergencies, and who to contact in case of an emergency. Here, Jessica is just starting kindergarten, but as she gets older she may be participating in field trips, sports, or other extracurricular activities. As those needs arise, her Section 504 Plan should include managing her diabetes in those circumstances.  

6.     Do parents have the right to appeal or complain under Section 504?

Parents have the right to have a hearing if they disagree with how the school is providing Section 504 services. They should contact their school district or state department of education for information about that process. Parents may also file a complaint with the federal Office for Civil Rights. Information about how to file a complaint or more information about Section 504 and the ADA can be found at the Office for Civil Rights website at www.ed.gov/ocr.          

  Section 504 is not a special education law. It is a civil rights law that protects students with disabilities. A student can have a disability under Section 504 and not need special education. Jessica doesn’t need special education. She just needs a  plan to manage her diabetes. With that plan in place, she’ll do just fine.