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The GAP Attorneys Blog

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

Posts Tagged ‘Disability discrimination’

Failure to implement and revise IEP to address ongoing harassment may render school district liable under Section 504

Thursday, July 11th, 2013

Stewart v. Waco Independent School District, 60 IDELR 241 (5th Cir. 2013):  A federal court of appeals allowed a student’s claims relating to alleged harassment to proceed under Section 504, noting that, if taken as true, they could demonstrate that the school district exercised gross misjudgment.  The student, diagnosed with mental retardation, speech impairment, and hearing impairment, alleged she was subject to several instances of sexual harassment and abuse by peers, and that such instances directly resulted from the school district’s failure to implement the safety measures built in to the student’s IEP.  She also claimed that the school failed to revise her IEP to prevent harassment from recurring.

The court denied relief asserted under a theory of deliberate indifference, since the student failed to allege enough facts to meet that threshold.  However, the court permitted the case to proceed under a theory of gross misjudgment, noting that, when viewed favorably to the student, her allegations could show that the district’s course of action went “strongly against the grain of accepted standards of educational practice” if the district failed to satisfy an ongoing responsibility to provide the student with reasonable accommodations necessary to mitigate or eliminate the sexual harassment and abuse.

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Parents may pursue Section 504 claim for disability discrimination related to bullying

Monday, June 17th, 2013

D.A. v. Meridian Joint School District No. 1, 60 IDELR 192 (D. Idaho 2013):  A federal district court permitted a student’s Section 504 discrimination case to proceed where his parents alleged that he was the victim of “relentless bullying.”  The Court explained that “evidence of bullying severe enough to alter the condition of a student’s education and create an abusive educational environment, coupled with knowledge and deliberate indifference by school officials” is one way to establish a Section 504 violation.  Here, a student, diagnosed with Asperger’s and high functioning autism spectrum disorder, burned down his house, which behavior his parents attributed to the harassment he endured at school. Since the student’s fire setting incident resulted in an eighteen month incarceration, the student was deprived of his education (which constituted a denial of access to his education, a prerequisite to a valid Section 504 claim in this instance).  Accordingly, the parents’ claims may proceed to trial (at which time the parents would be required to prove their allegations, as well as knowledge and deliberate indifference by school officials).

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School District must defend Section 504 claim of discrimination based on unaddressed reports of peer harassment

Thursday, November 15th, 2012

M.S. v. Marple Newtown Sch. Dist., 59 IDELR 186 (E.D. Pa. 2012)—the court denied the school district’s motion to dismiss because it found that the parent sufficiently plead viable claims for disability discrimination. When M.S. was in eighth grade, her sister was molested by B.C. who lived near her family. M.S. was placed in the same class as B.C.’s brother, J.C., despite M.S.’s mother’s request to separate the students. M.S. was placed in the same class as J.C. again during her tenth grade year and again during her eleventh grade year. M.S. was diagnosed with anxiety disorder and post-traumatic stress disorder and the school counselor recommended that M.S. and J.C. be put in separate classes, but the school district did not place the students in different classrooms. M.S. enrolled in a vocational program to get away from J.C.’s staring, leering and other disruptive behavior. M.S.’s mother filed discrimination complaints against the school and the court found the complaint sufficiently stated a claim for discrimination based on disability. The parent also alleged sufficient facts to state a claim for retaliation by the school against M.S.

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Schools, districts may not use aversive techniques in discriminatory manner

Wednesday, June 13th, 2012

Letter to Anonymous, 57 IDELR 49 (OSEP 2010): Alexa Posny, Assistant Secretary of the United States Department of Education, responded to concerns over comments she made at an Interagency Autism Coordinating Committee that the Department has no position on the inclusion of seclusion and restraint techniques in students’ IEPs.  Ms. Posny emphasized that although it is important that states publicize its policies and procedures on the use of aversive techniques, neither the IDEA nor other federal laws specifically prohibit the use of seclusion and restraint techniques in schools.  However, Ms. Posny indicated that if the use of seclusion and restraint is implemented in a school in a discriminatory manner on the basis of race, color, national origin, sex or disability, the Department’s Office of Civil Rights (OCR) would have jurisdiction over such a complaint.  She also warned that any behavioral intervention must be consistent with the child’s right to be treated with dignity and to be free of abuse, regardless of the child’s needs or behavioral challenges.

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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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