Nondiscrimination Laws Applicable to Public Education

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Nondiscrimination Laws Applicable to Public
Education

• Special Education and the Law
• Winter 2009
• Sherrie Brown

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Rehabilitation Act of 1973 -- Section 504

• No otherwise qualified individual with a
  disability . . . Shall, solely by reason of her
  or his disability, be excluded from the
  participation in, be denied the benefits of, or
  be subjected to discrimination under any program
  or activity receiving Federal financial
  assistance.
• 29 USC Section 794(a)

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504 Regulations

• Give framework for policies/procedures to
  implement Section 504
• Must identify students (child find)
• Evaluate students
• Develop a plan which SHOULD be written!
• Meet needs to ensure that have same access to
  educational opportunities as nondisabled students
  (academic and extracurricular) (FAPE)

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The Americans with Disabilities Act (ADA)

• Extends protection (nondiscrimination) of Section
  504 to private employers, state and local
  governments, and any privately owned business or
  facility open to the public.
• Prohibits discrimination against an individual
  with disabilities by reason of such disability.

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ADA includes five substantive areas

• Title I Employment
• Title II Programs and Services of State and
  Local Government
• Title III Public Services and Facilities
  Operated by Private Entities
• Title IV Telecommunications
• Title V Miscellaneous

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What is important to remember about ADA and
schools.

• ADA adopted the 504 regulations and judicial
  standards for the most part.
• WITH MINOR EXCEPTIONS no additional obligations
  on behalf of schools nor provide additional
  rights to students with disabilities in public
  schools.
• Compliance coordinator
• Transition plan
• All IDEA eligible students are also protected by
  ADA and 504.

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Qualified individual is student

• Of an age during which nondisabled
  (nonhandicapped) persons are provided such
  services
• Of any age during which it is mandatory under
  state law to provide such services to disabled
  (handicapped) persons
• To whom a state is required to provide a FAPE
  under IDEA
• 34 CFR 104.3(k)(2)

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Who is disabled i.e., protected?

• Any person who
• has a physical or mental impairment that
  substantially limits one or more major life
  activities,
• has a record of such impairment, or
• is regarded as having such an impairment.
• 34 CFR 104.3(j)(1)

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In educational termsqualified student with
disability

• Must have a physical or mental impairment which
  substantially limits a major life activity--
  e.g., learning.
• Learning substantially limited if no educational
  benefit.
• Qualified student with disability must be
  provided aids, benefits, or services as effective
  as those provided non-disabled students.

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Who enforces 504 and ADA in schools?

• Courts
• Office for Civil Rights (OCR) in Federal
  Department of Education (primary interest is
  procedural compliance)
• Technical Assistance
• Presentations
• Partnership Activities
• Response to Inquiries
• Complaint Processing
• Resolution Between the Parties
• Agreement to Resolve
• Letter of Finding
• Administrative/Judicial proceedings

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Basic civil rights objectives of Section 504 and
ADA

• End isolation of persons with disabilities
• Secure equal opportunity
• Not necessarily identical treatment
• Equivalent treatment
• Remove unnecessary barriers through
  academic adjustments and auxiliary aids
• Foster independence
• Prevent a hostile environment
• OCR. Web Access Considerations under Section
  504 Title II (November 2002).

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Major Principles

• Protection from Discrimination
• Reasonable Modification
• Free Appropriate Public Education
• Program Accessibility
• Comparable Facilities
• see page 130 of Yell

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Protection from Discrimination

• Unequal treatment of qualified students solely on
  the basis of their disability discrimination
• Providing services for students without
  disabilities and not providing them to students
  with disabilities discrimination

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Reasonable Modification

• Must be provided to ensure that discrimination
  does not occur.
• Unless school can prove either undue financial or
  administrative hardship or fundamental alteration
  in the program.

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FAPE

• FAPE must be provided to qualified students with
  disabilities.
• An education must be
• Individualized (IEP is one example but not
  required)
• Equivalent to an education provided to students
  without disabilities
• Developed by a knowledgeable group of persons
  based on evaluation data
• Provided with nondisabled peers (least
  restrictive environment) to maximum extent
  appropriate

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Program Accessibility

• School programs academic and nonacademic must
  be accessible to students with disabilities.
• School districts are not required to make all of
  their schools, or every part of their schools,
  accessible if their program as a whole is
  accessible.

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Comparable Facilities

• When a school operates a facility for students
  with disabilities, the facility must be
  comparable to general education facilities and
  services.

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School District Responsibilities

• Procedural Responsibilities
• Appointment of a Section 504 coordinator
• Public notification
• Grievance procedures
• Self-evaluation
• Staff training
• Identified Students
• IAP or 504 Plan
• Strategies for enabling student to achieve FAPE
  in the LRE
• Related services, aids, specialized instruction
  as needed

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When to consider eligibility?

• When any disability is suspected.
• When student shows pattern of not benefiting from
  the instruction provided.
• When a student is referred for evaluation for
  special education but it is determined not to do
  an evaluation.
• When a student is evaluated but is not determined
  to be IDEA eligible.
• When the student is identified as at risk or
  exhibits the potential for dropping out.

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Continued

• When retention is being considered.
• When a student exhibits a chronic health
  condition.
• When a student returns to school after a serious
  illness.
• When a new building or remodeling is being
  considered.
• When substance abuse is suspected.
• When suspension or expulsion is being considered.

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Section 504/ADA DOES NOT require

• IEPdoes require accommodation plan.
• Parents to be part of AP developmentbut
  participation recommended.
• Accommodations provided by general education.
• Independent evaluation (no right to this).
• Stay-put.

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Section 504 Accommodation Process

• Suspicion of Disability?
• Referral for Evaluation (parent consent for
  initial evaluation)
• 504 Team Evaluation (knowledgeable about student,
  disability and placement options)
• 504 Eligibility Determination (disability and
  substantial limitation and parent notification)
• 504 Accommodation Plan/Placement (parent consent
  for initial placement and parent notification)
• Annual Review/Re-evaluation (annually or if
  significant change and parent notification

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Types of Accommodations

• Change instructional arrangement
• Large group
• Cooperative learning group
• Peer partners
• Individual instruction
• Independent seat work
• Change the lesson format
• Lecture, demonstration, practice
• Whole class discussion
• Games and simulations
• Experiential learning
• OSPI/Jim Rich (2009)

• Change the curriculum
• Same content/less material
• Same subject are/functional applications
• Change the sequence
• Alter the pace of the lesson
• Change teaching style
• Give more prompts or cues
• Provide written and verbal instruction
• Use more physical guidance
• Institute behavioral management practices.

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Current legal issues

• Who is protected?
• Discipline of students who are 504/ADA ONLY
• Athletics and other extracurricular activities
• Reasonable modifications to rules
• Provision of auxiliary aids and services
• Harassment of students with disabilities
• Overrepresentation of minority students in
  special educationparticularly in discipline

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Washington State Law Against Discrimination (RCW
49.60)

• Originally passed in 1949 amended in 1973 to
  include people with physical, mental and sensory
  disabilities.
• Disability had been interpreted by HRC and courts
  to be broad.
• McClarty v. Totem Electric (2006) said no -- ADA
  definition.
• Legislature amended in 2007 to put in statute a
  broad definition.
• Prohibits discrimination on the basis of
  disability in public accommodationi.e., schools
  except those operated by bona fide religious or
  sectarian institution.
• Guarantees students the full enjoyment of the
  benefits and services from schoolsincluding
  extracurricular activities.
• Requires schools to make reasonable
  accommodations to the known limitations of the
  person if they prevent the individual from
  enjoying the benefits of education.
• Unless this creates undue hardship.

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Differences between RCW 49.60 ADA

• Definition of disability.
• Damages and remedies available are broadere.g.,
  can receive pain and suffering awards.
• Employment settings covered include smaller
  businesses than ADA (8 vs. 15 employees).
• Complaints can be filed with Washington State
  Human Rights Commission as administrative remedy.

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What kinds of school cases brought under ADA and
Section 504?

• Most IDEA cases also charge violation of 504 and
  ADA.
• Complaints brought by children only on 504 plans
  (access to programs) similar to those brought by
  children on IEPs.

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Case Examples

• Physical access cases
• Washington DC school district sued in 1999 by
  Freddy Ramirez (9 year old boy with CP) because
  he couldnt get his wheelchair through the
  bathroom door.
• Parents and siblings with disabilities sue under
  504 because facilities/activities are
  inaccessible to them (2005 cases)
• Harassment cases
• Baird v. Rose
• KM v. Hyde Pk Central SD (SD NY 2005) Mom claims
  harassment of son with developmental disabilities
  by peers
• Scruggs v. Meridien Bd. of Education (D Conn.
  2005) Suicide of student because of bullying by
  peers

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Cases continued

• Evaluation/Discipline
• Seattle SD No. 1 (OCRX 2005)
• Violation of 504 because SSD denied student with
  bipolar disorder an evaluation on basis of
  academic achievement in regular education
• Expelled from one school and when school learned
  of his disability, should have done evaluation.

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Baird v. Rose Group 1

• FACTS?
• ISSUE(S)?
• HOLDING?
• REASONING?

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Examples of Harassment that could create a
Hostile Environment

• Several students continually remark out loud to
  others that a student with dyslexia is retarded
  or deaf and dumb and does not belong in class.
• A student places classroom furniture in the path
  of a classmate who uses a wheelchair on a regular
  basis.
• A teacher repeatedly belittles and criticizes a
  student for using modifications/aids in class.
• Involving or attempting to involve an individual
  with limited comprehension in dangerous or
  criminal activity.

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In Summary

• Section 504

• Federal Civil Rights Statute
• Passed in 1973 to eliminate discrimination on the
  basis of disability in any program or activity
  receiving Federal financial assistance.
• Applies to recipients of Federal financial
  assistance.
• Covers employment practices, program
  accessibility in preschool, elementary,
  secondary education programs, post-secondary
  education programs, health, welfare social
  services.

• Federal civil rights statute
• Passed in 1990 to provide a comprehensive
  approach to eliminate discrimination on the basis
  of disability throughout USA.
• Applies to all public and certain private
  entities whether or not they receive Federal
  financial assistance.
• Covers employment practices, public services,
  public accommodations and commercial facilities,
  and telecommunications services.