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 January, 2011 the mother provided a diagnosis for her son from 2004 that identified him as having ADHD. Subsequently, the school district convened a meeting and developed a 504 plan that provided accommodations for the student. The mother, however, filed a complaint with OCR for the district’s delay in developing the plan and for not conducting its own evaluation of the student.

The Office for Civil Rights determined that district staff had acted under the erroneous belief that a medical diagnosis was required to qualify a student for a 504 Plan. Moreover, the school district’s mistake in requiring a medical diagnosis was exacerbated by requiring that the parent pay for the medical diagnosis. If the school district felt a diagnosis was needed, it was obligated to pay for the diagnosis. In order to avoid paying for the evaluation, the school district relied on an outdated diagnosis from 2004. This resulted in an inadequate 504 Plan. As a result, the student went for over a year and a half without being evaluated by the school district to either confirm, disprove, or modify his perceived diagnosis of ADHD and to identify the nature and extent of his possible disabilities. To remedy the 504 violation the school district agreed to conduct appropriate evaluations of the student, provide him with compensatory services, and to to train its staff on the requirements of section 504.

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.

     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.

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.

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.

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.

The intent of the legislation is to allow children in foster care to move from school to school as seamlessly as possible. Unfortunately, children in foster care are often subjected to frequent moves and it was thought that FERPA had unintentionally prevented schools from sharing educational records with social workers. This had resulted in inappropriate placements, enrollment delays, delayed graduation, repeated classes, and dropouts. While the bill allows schools to release records, it does not require the schools do so. Like most of the requirements in FERPA, the release of records is permissive and not mandatory. The bill is expected to be signed into law by President Obama.

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.

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.