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

Posts Tagged ‘discrimination’

After Parent withdrew consent to provide special education and related services under IDEA, the District satisfied its 504 FAPE obligations by convening a meeting to develop a 504 plan

Thursday, June 20th, 2013

Kimble ex rel. B.K. v. Douglas Cty. Sch. Dist. RE-1, 60 IDELR 221 (D. Colo. 2013)—in this case, the student had been receiving special education and related services pursuant to an IEP. In response to receiving the proposed IEP for the next school year, the parents formally revoked their consent to the District providing special education and related services to their child. The Director of Special Education informed the parents (erroneously) that by withdrawing consent for services under IDEA, the parents effectively withdrew consent for those services under a 504 plan. Nevertheless, the District convened a 504 meeting at the parents’ request and offered a 504 plan “to implement the services as identified” in the previously rejected IEP. The parent who rejected the Section 504 plan but continued to seek accommodations under Section 504 filed a due process complaint, alleging discrimination under Section 504 and Title II of the ADA. The court held that revocation of parental consent to provide IDEA services does not eliminate the District’s obligations under Section 504 and the ADA. However, here the District convened a 504 meeting and proposed a 504 plan. Thus, the parents cannot hold the District liable for discrimination by not providing accommodations that they rejected under the 504 plan.

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School District’s failure to conduct timely evaluation, as soon as it has reason to suspect that student’s medical condition is affecting academic performance, violates Section 504

Thursday, May 23rd, 2013

Penn Yan Cent. Sch. Dist., 60 IDELR 170 (OCRII, New York (NY) 2012)—here, a parent filed a complaint with OCR against a New York school district for failing to evaluate his child for a suspected disability. The student has epilepsy, and the school district was aware of the disability and the fact that it may be interfering with his academic performance. Although “the District claimed that it did not have reason to suspect that the student had a physical or mental impairment that might substantially limit a major life activity until December 2011,” there was an email from the principal in August 2011 stating that the student’s seizures might be contributing to his attention problems in school. While there was an Emergency Seizure Care Plan put into place in early 2012, not all of the student’s teachers received the plan which resulted in an inappropriate response by the student’s Math teacher to a petit seizure. In February 2012, the parent granted consent for the district to evaluate his child, though the district had specifically informed OCR that this evaluation was unrelated to the student’s epilepsy. The evaluation occurred in April 2012 and recommended that the district consider a 504 plan to address the student’s seizures. The student was not formally referred to a 504 team at that time because his parent wanted a private medical evaluation before moving forward. In September 2012, the parent consented to implementing a 504 plan which would address the student’s epilepsy. OCR determined that despite knowing of the student’s epilepsy in August 2011, the district did not refer him to be evaluated for special education services, and the Care Plan it developed was not properly implemented by all of the student’s teachers. The district voluntarily agreed to implement a resolution agreement under which it will convene a 504 team meeting to determine if compensatory services are warranted, and it will provide training to relevant staff regarding the district’s obligations under Section 504 to ensure the timely evaluation of any student suspected of needing special education and/or related services because of a disability.

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District should have adequate back-up plan in case accommodations become temporarily unavailable.

Thursday, April 25th, 2013

Bellingham (MA) Public Schools, 59 IDELR 142 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) concluded that a school district failed to comply with Section 504 when it lacked an adequate back-up plan for a student with a hearing impairment while his FM system was out for repair.  The student required use of the FM system to adequately access his educational program, however his FM system constantly broke down early in the school year.  Implementation of the FM system was sporadic through the end of October, when it was finally repaired by the manufacturer.  However, while it was unavailable, the district had no alternate accommodation to allow the student adequate access to his education.  Accordingly, the district violated Section 504.

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School cannot impose specific conditions upon parent with a disability before allowing access to parent’s service dog.

Monday, March 25th, 2013

Hillsboro (OR) School District, 59 IDELR 82 (OCR 2012):  The U.S. Department of Education’s Office of Civil Rights (OCR) determined that a school district failed to comply with Section 504 when it limited the ability of a parent with disability to volunteer in her child’s school while using her service dog.  The parent had volunteered in her child’s kindergarten class, and was accompanied by her service dog.  However, the district subsequently conditioned the parent’s ability to volunteer while accompanied by the service dog on the parent’s submitting certification of the dog’s training and vaccinations, evidence of insurance coverage for any damage or injury caused by the dog, as well as her need for the service dog and the services it provides.  Upon submitting such information, the parent would then be able to volunteer, but only away from staff and students.  OCR found these conditions violated Section 504 by discriminating against this parent, since other parent volunteers were covered by the district’s liability insurance policy and there was no indication that the service dog posed any threat (by allergies or otherwise) to the school community.  Accordingly, OCR noted that the only requirements a district can impose before allowing access to a service dog is to inquire about the tasks the service dog is trained to perform (but cannot require specific evidence of certification).

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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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Parents may pursue claim of discrimination against private school for students with disabilities.

Thursday, May 17th, 2012

Bishop v. Children’s Center for Developmental Enrichment, 57 IDELR 285 (S.D. Ohio 2011):  Where parents of a student with autism alleged that a private school for students with disabilities took steps to exclude the student from its program due to the student’s autism, a U.S. District Court allowed the case to proceed.

The student was placed in a preschool program at the private school by his school district in accordance with his IEP.  However, during the student’s first day of school, the parents disagreeing with the particular classroom to which the student had been assigned, refused to allow him to stay in that class.  They believed such classroom assignment failed to implement the student’s IEP.  Based on their refusal, the private school claimed that the parents had withdrawn the student from its program.

The parents disagreed, claiming that they only refused to allow the student to attend the assigned preschool classroom, but did not withdraw him from the school entirely.  The parents argued that the school’s selection of the student’s classroom (and its subsequent insistence that the student be withdrawn) was due to the school’s wish for the student to leave the program.  The school’s classroom assignment was purposefully not in accordance with the student’s IEP so as to ultimately coerce the parents into removing the student from the program.  The parents further alleged that the school wanted the student to leave its program because he was autistic.  The Court specifically noted that a school specializing in educating autistic students could discriminate against a child with autism, since autism is a “broad spectrum disorder” and “some autistic children are more difficult to educate that others.”  Accordingly, the parents’ discrimination case was allowed to proceed.

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State of New York passes anti-bullying law

Friday, September 9th, 2011

Dignity for All Students Act:  The New York State legislature passed the “Dignity for All Students Act,” which aims to establish an environment free of discrimination and harassment in New York State schools.  The Act (effective as of July 1, 2012) applies to harassment and discrimination based on a student’s disability, race, color, weight, national origin, ethnic group, religion, religious practice, gender, and sexual orientation.   It instructs school districts to develop policies that create an environment free of discrimination and harassment, to create in-school training programs designed to raise awareness and sensitivity of school employees to potential instances of discrimination and harassment, and to enable school employees to prevent such acts of discrimination and harassment.  Moreover, the Act requires school districts to create guidelines to the development of nondiscriminatory instructional and counseling methods, as well as ensuring that at least one staff member is trained to handle human relations in all of those areas designated for protection against discrimination and harassment.  In addition, the curriculum in all grades (K – 12) must include a course on civility, citizenship and character education.

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School district must respond to disability based harassment once the District is aware of its occurrence.

Saturday, July 2nd, 2011

Williamston (MI) Community Schools, 56 IDELR 22 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), determined that a school district did not properly respond to disability-based harassment of a student when the school district failed to take appropriate steps upon learning of the harassment.  The student had cognitive impairments that affected his communication skills and interfered with his ability to navigate social situations.  As a result, he participated in an alternative curriculum for most subjects and became the target of verbal and physical teasing.

OCR stated that once a school district knows, or reasonably should know, of possible harassment based on disability, it must respond promptly and effectively.  This is true even if the school district does not learn of the harassment from the harassed individual directly.  The student’s parent raised concerns about the bullying to the school district, and the student’s guidance counselor discussed bullying in general terms with the student.  However, the student was reluctant to fill out written incident reports of the bullying, and for that reason, the school district took little action to investigate and remedy all of the instances of disability-based harassment of which it was aware.  As a result, the school district failed to comply with Section 504.

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School district may deny attendance on a field trip by a disabled student, if the student’s behavior presents a safety concern.

Friday, June 24th, 2011

Lawrence (MA) Public Schools, 56 IDELR 55 (OCR 2010):  The U.S. Department of Education, Office for Civil Rights (OCR), determined that a school district acted lawfully when it excluded a student with autism from a field trip to an aquarium due to safety concerns resulting from escalating behavior.

The student’s parent alleged that her daughter was excluded due to her disability. However OCR concluded, after its investigation, that the student’s escalating behavior prior to the date of the field trip resulted in safety concerns.  As a result, the student was properly excluded from the field trip, notwithstanding that she had attended a previous field trip to a farm.  OCR concluded that the school district did not discriminate under Section 504, related to the student’s disability, but responded to legitimate safety concerns.

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School district must ensure that measures to address harassment based on a student’s disability are actually implemented in order to comply with Section 504.

Friday, May 6th, 2011

Santa Monica-Malibu (CA) Unified School District, 55 IDELR 208 (OCR 2010):  A school district needs to take steps to ensure that any measures it takes in response to harassment of a student, based on his disability, are actually implemented.  Failing to implement to do so could result in a finding of a failure to comply with Section 504.

A school district is not responsible for the actions of a harassing student, per se, but may be responsible for failing to respond adequately. In this case, the student had a disability that resulted in lack of traditional social skills.  The student preferred to be alone, and was uncomfortable being touched and having anyone expressing statements of affection.

The student’s parent alerted the school district to various and ongoing incidents of harassment, which resulted in the student missing school.  Although, the school district drafted an IEP with specific harassment related measures, it violated Section 504 when it delayed until after it received additional reports of harassment and failed to ensure that those measures were implemented.  As result, the school district did not comply with Section 504.

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