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Posts Tagged ‘Section 504’

Parents’ retaliation allegation supersedes child abuse reporter confidentiality

Friday, September 19th, 2014

Grummons v. Williamson County Board of Education, 63 IDELR 61 (M.D. Tenn. 2014):  The parents of a student with a disability convinced a federal magistrate judge to supersede a state’s child abuse reporting confidentiality provisions.  The parents, suing under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, alleged that the school district reported them to the department of children’s services (DCS) in retaliation for the parents’ challenge to the district’s provision of special education services.  The court deemed the information relevant, but in order to balance the interest of confidential reporting, the requested information (namely, the identity of the individual(s) who submitted the report to DCS) would be disclosed to the parents, but was limited for use in the instant litigation and could only be disseminated on a “good faith need to know” basis.

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ADA presents different compliance responsibilities than the IDEA

Monday, December 9th, 2013

K.M. v. Tustin Unified School District, 61 IDELR 182 (9th Cir. 2013): A federal Court of Appeals held that a school district’s responsibilities under the Americans with Disabilities Act (ADA) and Individuals with Disabilities Education Act (IDEA) are, in certain instances, separate and distinct.

The plaintiffs were two students with hearing loss who received services under the auspices of an Individual Education Program (IEP).  Both students requested but were denied realtime transcription services for their academic programs, on the rationale that their IEPs provided them with sufficient educational benefit.  The lower court dismissed the students’ ADA claims, considering them coextensive with their IDEA claims.

The Court of Appeals overturned the lower court, noting that ADA regulations can impose separate and distinct compliance obligations when compared to the IDEA (and Section 504) free appropriate public education (FAPE) requirements.  Specifically, the ADA establishes certain communication standards each public agency must meet to ensure “equal opportunity” for communication.  Such a standard may be over and above, and distinct from, that which is required by the IDEA.  Accordingly, the Court of Appeals overturned the lower court’s finding that the students’ ADA claims were precluded by finding no denial of FAPE.

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School’s failure to address bullying permits suit for damages

Monday, August 12th, 2013

M.J.  v. Marion Independent School District, 61 IDELR 76 (W.D. Tex. 2013): A federal district court allowed the parents of a student with bipolar disorder and ADHD to seek damages from a school district which failed to adequately address disability-based bullying.  The court concluded that, under Section 504, a school may be liable for failing to remedy disability-based peer-on-peer harassment.  Accordingly, the suit was permitted to proceed to resolve a genuine dispute as to whether the school acted with deliberate indifference or gross misjudgment when the student notified it of instances of harassment.

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District’s awareness of ongoing bullying triggers duty to investigate under Section 504 and the ADA

Monday, August 5th, 2013

Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cty., Okla., 61 IDELR 69 (N.D. Okla. 2013)—in this case, the parents of a thirteen year old student with Asperger’s brought suit against the school district. Among other things, the parents alleged that the district acted with deliberate indifference when it failed to follow its own policy to investigate allegations of bullying, by failing to respond to reports of at least 32 incidents. The parents alleged incidents of student-on-student bullying, through the use of name-calling and labeling the student based on his difficulties with socialization. Although finding the allegations insufficient to support a claim of district discrimination, the court found that the complaint sufficiently alleged deliberate indifference with regards to disability-based, student-on-student harassment under the ADA and Section 504. Also, the court found a basis for a claim based on the Equal Protection Clause and municipal liability. On those grounds, the parents were allowed to proceed with their claims against the district for disability-based harassment.

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School district must evaluate students for 504 accommodations, regardless of provision of health plan

Thursday, July 18th, 2013

Torrington (CT) Board of Education, 60 IDELR 295 (OCR 2012): The U.S. Department of Education’s Office of Civil Rights (OCR) informed a school district that, in order to comply with Section 504, the school must evaluate students with severe allergies for possible accommodations and modifications.  Here, the school district maintained a policy by which students with allergies received health plans to address their needs without conducting any evaluation or convening a proper Section 504 team.  OCR explained that, to satisfy Section 504, any student suspected of having a disability (which includes students with severe allergies) a school must evaluate that student for accommodations and modifications under Section 504.

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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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Public Charter Schools must be sure there are no gaps in providing diabetes-related services and have proper grievance procedures in place to resolve disputes under Section 504

Monday, June 24th, 2013

District of Columbia Pub. Charter Schs., 60 IDELR 231 (OCRXI, D.C. (DC) 2012)—in this case, multiple parents of children with diabetes brought complaints against the District of Columbia Public Charter Schools for failing to provide diabetes-related services at school, in violation of Section 504. There was not an adequate number of staff members who were properly trained to administer diabetes-related services, such as administering insulin or glucagon. When a nurse was unavailable to address the students’ diabetes-related needs, the student would either be sent home, the parents would be called to administer the services, or 911 would be called. OCR found that 13 of the Public Charter Schools had failed to provide a FAPE to students with diabetes, and 11 of those schools resolved the allegations by timely submitting Section 504-compliant plans and evidence that an appropriate number of staff members were trained to administer diabetes-related services. The other two schools signed Resolution Agreements agreeing to take multiple actions in order to come into compliance with Section 504. All 13 schools also resolved the allegations regarding inadequate due process standards and grievance procedures, either by coming into timely compliance or signing Resolution Agreements. OCR was satisfied with the response by the Public Charter Schools and closed its investigation.

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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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Districts must make extracurricular programs, including athletics, accessible to students with disabilities

Thursday, June 6th, 2013

Dear Colleague Letter, 60 IDELR 167 (OCR 2013):  The federal Education Department’s Office of Civil Rights (OCR) issued policy guidance on school district responsibilities relating to extracurricular activities, particularly extracurricular athletics.  OCR noted that a district must ensure students with disabilities have an equal opportunity to participate in extracurricular athletics, even if such opportunity requires that a school provide needed aids and services. Similarly, if a school cedes any control over its interscholastic athletic program to outside associations or leagues, such associations or leagues would also have to comply with Section 504 and ensure students with disabilities are reasonably accommodated.

OCR further noted that, where necessary, a school may need to create separate or different athletic opportunities.  However, such opportunities would only be indicated where a student (or students) with a disability cannot suitably participate alongside their nondisabled peers even with reasonable modifications.

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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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