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The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘Bad faith’

Parent who claims denial of FAPE under IDEA does not have to allege bad faith or discriminatory intent to state a claim under Section 504.

Thursday, June 21st, 2012

Rayan R. v. Northwestern Education Intermediate Unit No. 19, 58 IDELR 95 (M.D. Pa. 2012):  A U.S. District Court held that a parent could maintain a claim of discrimination under Section 504 by virtue of her claim that the school district failed to provide a free appropriate public education to her school-aged child under the IDEA.

The child, who was diagnosed with autism, borderline intellectual functioning, ADHD, oppositional defiant disorder, and an adjustment disorder, received services from the school district as a preschool student, but the school failed to provide adequate services and did not appropriately plan for the student’s transition to kindergarten.  The parent alleged the school district denied him a FAPE, and brought suit under the IDEA and Section 504.  The school district argued that since the student was over the age of three, but not yet in kindergarten, there could be no discrimination because it did not offer a “programming analogue for non-disabled children.”  The Court rejected such position, noting that Part B of the IDEA applied to the student, who was over the age of three, despite the fact that he was not yet in kindergarten.  Accordingly (based on precedent in that federal circuit), allegations of a denial of FAPE under Part B of the IDEA to this school-aged child, thereby states a claim of discrimination under Section 504 (even without any allegation of bad faith or discriminatory intent).

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Court refused to dismiss denial of 504 FAPE claim against private school

Monday, April 2nd, 2012

Bishop v. Children’s Center for Developmental Enrichment, 57 IDELR 156 (S.D. Ohio 2011): The court refused to dismiss a claim brought by the parents of a student with autism that a private school denied the student a free appropriate public education (FAPE) under Section 504 of the Rehabilitation Act.  As a recipient of federal financial assistance, the private school may be subject to a denial of FAPE claim under Section 504.  Although the private school claimed that the parents withdrew the student from the school, the parents had evidence that the school expelled the student from school by reason of the student’s autism.  Therefore, there was a genuine issue of material fact as to whether the private school acted with bad faith or gross misjudgment (or at the very least with deliberate indifference) and that it discriminated against the student “solely by reason of his disability.”

However, the court dismissed the parents’ claim under the Americans with Disabilities Act (ADA), since the parents did not present any admissible evidence that the private school is a place of public accommodation (as is required by Title III of the ADA).  The court also dismissed the parents claim under Section 1983 since the parents could not show that the private school was acting under the color of state law.

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