Misadventures in School Law We dont make this

Misadventures in School Law [We don’t make this stuff up. ] Presented by: Rachel England & Emily Omohundro

Misadventures in 2016 1. OCR Website Accessibility Investigations 2. Bullying (discrimination/harassment) Lawsuits – Updated MO Bullying Statute 3. OCR (again) Student Discipline Investigations 4. Employee Accommodations under the ADA 5. Accommodating Students in Extracurricular Activities

Website Accessibility

Website Accessibility

What is “website accessibility”? • • Everything program does/puts on the internet must be accessible per Title II or Section 504 Must provide “Equal Access” – Equal Access = “receive all the educational benefits provided by the technology in an equally effective and equally integrated manner” Agency with an inaccessible website may meet its legal obligations by providing an alternative accessible way for citizens to use its programs or services (per DOJ guidance) — however may not be effective if limited by hours of operation Websites must be assessable to people with assistive technology (foot pedals, refreshable braille, appropriate contrast, open and closed captioning of video content)

Components of Accessibility • • Graphics on websites must have meaningful captions that screen reader will pick up Meaningful info. must be provided through more than just one color Must be able to tab through a page to get through all functions Pages should not require a user to manipulate a mouse for navigation Web Accessibility Guidelines—if you comply with the WCAG 2. 0 guidelines, then you will have an accessible website Federal agencies must comply with Section 508 standards; OTHERS including school districts may use Section 508 standards as guidance but are not subject to Section 508 itself OCR Guidance on Accessible Technology Separate or Different websites—NO—because both websites would have to be equally accessible

Defenses—“Fundamental Alteration”/Undue Burden • Covered entities do not have to do anything that would fundamentally alter the nature of the program or service they are providing (i. e. provide a verbal description of a topographical map) • Covered entities do not have to do anything that would impose an undue administrative or financial burden

Steps for Ensuring Website Accessibility • • • Build new websites and pages to be accessible from the outset Ensure new content (linked Word or PDF documents, embedded audio and video clips, etc. ) is accessible Identify existing barriers to accessibility and remove them Provide an easy way for people with disabilities to notify officials of accessibility problems and request alternatives Adopt a policy to designate an individual for people to contact in the event of accessibility issues

Resources • • Evaluating accessibility resources at www. w 3. org/wai Use free online accessibility utilities to check websites for accessibility • OCR recommends: Wave Accessibility – Chrome browser extension—once downloaded, it will put a button in the bar and you can click it for any webpage you go to, it will give you summary of inaccessible features – Looks for Section 508 and WCAG 2. 0 compliance

What if your District is the subject of an OCR Complaint? OCR will look at: 1. 2. 3. 4. 5. 6. Policy/procedure regarding website accessibility • Recommended to adopt the WCAG 2. 0 standard as part of the web accessibility policy If third party vendor, let OCR know who it is, and what kind of contract they have with District Contact info. for website administrator and IT people Documents internally related to creating an accessible website Monitoring efforts Any complaints or grievances previously received regarding website If you can’t fix the website, will have to certify to OCR why you can’t make the fix (hard sell)

What if your District is the subject of an OCR Complaint? Components of a Resolution Agreement: 1. Ask for an audit of barriers 2. Timeline for fixing the errors 3. Draft a proposed notice for public consumption that gives people info. on how to report inaccessible features Taking the content down is an alternative…

Bullying Lawsuits “School districts nationwide are seeing a rise in lawsuits stemming from bullying incidents that cause physical harm or emotional distress to students. The increase, some experts say, comes from parents having higher expectations that districts will protect their children from other students while at school. ”

Student-on. Student Harassment Litigation What You Need to Know ··· Student/parents are increasingly filing lawsuits against districts and administrators for harassing and bullying conduct by other students. Your staff must know how to identify, properly report and address both discrimination/ harassment and bullying complaints. Key Concepts Conduct that has traditionally been considered “bullying” is being recast as “harassment”. The district must treat student on student misconduct as harassment or discrimination if the victim’s protected classification (race, gender, disability, etc. , ) contributed to the misconduct. A school district (and administrators) may be held liable for student-on-student harassment under MHRA if: (1) the student’s race, gender or disability, etc. contributed to the discriminating or harassing conduct; (2) the student was denied services or privileges available in public school because of the conduct; and (3) the school district know or should have known of the conduct and failed to take prompt and effective remedial action. To protect your district from student on student harassment lawsuits, all complaints of bullying or harassment should properly reported, classified, investigated and address in

Checklist: Identify the basic facts of the incident. ¨ Determine if the misconduct requires reporting outside of the building as child abuse, assault, or harassment/discrimination. . ¨ Determine if the conduct constitutes bullying. ¨ If so, a building principal should complete an investigation and, if bullying is found, take measures to end the bullying and impose appropriate discipline. ¨ If the conduct ALSO constitutes harassment or discrimination, the conduct immediately should be reported to the compliance officer who should conduct an investigation and, if the facts substantiate a violation of the district’s discrimination/harassment policies, implement effective remedial action. ¨ Designate a District employee to regularly checkin with the student/parents to ensure the conduct ¨

Bullying vs. Harassment

Tough Calls – what is “discrimination” in 2016? • • • 2 African American students refer to each other using the “n” word One girl refers to another girl using the “b” word Male student pinches female student’s rear, female student insists that it was a joke and did not bother Student has a confederate flag patch on his backpack, mom of African American student complains Disabled student punches another student, claims other student was making fun of him

Role of the Compliance Officer C. O. • Investigate (or oversee investigations) into complaints of discrimination/harassment • Assist administrators in determining if student conduct may rise to the level of discrimination or harassment based on a protected class • Assist administrators in developing remedies to address incidents of discrimination/harassment • Does NOT address bullying • Coordinate anti-discrimination efforts & training

OCR Student Discipline Investigations

The Case of the Angry Grandma • • Student got in several fights over the course of the first couple months of school, eventually resulting in a long-term suspension. Grandma comes into school, confronts principal, and states: “I hope you die so I can dance on your grave. ” Grandma is banned from school property for the remainder of the year. Grandma files OCR complaint stating that white students did not receive the same discipline as her grandson, who is African American.

OCR Data Request There were 21 total requests.

OCR’s View of its Role

Employee Accommodations under the ADA

What trends are we seeing? • • • Lack of detail in doctor’s notes Ridiculous requests Questionable credentials Mental health issues Avoidance of select job duties And other “Are you serious? ? ” issues

An Employer’s Obligation • • To provide reasonable accommodations to qualified individuals with disabilities, unless it would cause an undue hardship – significant difficulty or expense There a number of possible reasonable accommodations that an employer may have to provide: – making existing facilities accessible; – job restructuring; – part-time or modified work schedules; – acquiring or modifying equipment; – changing tests, training materials, or policies; – providing qualified readers or interpreters; and – reassignment to a vacant position

The Employee’s Obligation • • • When an individual decides to request an accommodation, the individual must let the employer know that he/she needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation. ” When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitation. – Only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.

Keeping “Reasonable Accommodations” Reasonable • • If the original documentation is incomplete or inadequate to determine the extent of the disability or reasonable accommodation, the employer has the discretion to require additional documentation. EEOC explains that documentation also may be insufficient where, for example: – – – the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; the information does not specify the functional limitations due to the disability; or other factors indicate that the information provided is not credible or is fraudulent.

Keeping “Reasonable Accommodations” Reasonable • • • An employer may require that the documentation about the disability and the functional limitations come from an “appropriate health care or rehabilitation professional. ” The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

Keeping “Reasonable Accommodations” Reasonable • • Employer should promptly communicate to the employee that the medical documentation is insufficient and allow the employee a reasonable amount of time to provide proper documentation. Notes of caution: – – Be careful about offering accommodations “informally” in the interim. EEOC cautions that once sufficient documentation has been provided, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation.

Keeping “Reasonable Accommodations” Reasonable • • In its Enforcement Guidance, the EEOC recommends that the employer should consider consulting with the employee’s doctor (with the employee’s consent) if the medical documentation provided by the employee is insufficient. Several courts have suggested that the employee is responsible for the breakdown in the interactive process where the employee refuses to allow the employer to speak with the employee’s doctor, especially in situations where the employer is seeking clarification from the employee’s doctor because previous attempts to accommodate were unsuccessful.

Keeping “Reasonable Accommodations” Reasonable • Employer may require an employee to go to a health care professional of the employer's (rather than the employee's) choice. – – • • The ADA does not prevent an employer from requiring an employee to go to an appropriate health care professional of the employer's choice if the employee provides insufficient documentation from his/her treating physician. The employer also should consider consulting with the employee's doctor (with the employee's consent) before requiring the employee to go to a health care professional of its choice. Examination must be limited to determining the existence of an ADA disability and the functional limitations. Employer must pay all costs associated with the visit(s).

Keeping “Reasonable Accommodations” Reasonable • Unfit to teach? – Some disabilities pose a “direct threat” to the health and safety of individuals in the workplace. – Where there is no reasonable accommodation available to negate that threat, an employer may terminate the employee (risky territory, but there may be risk on both sides).

No, we’re not joking. . . • • Bus driver’s chiropractor says he needs a new, ergonomic seat Teacher’s physician says she has a “subjective sensitivity to smells” that he “cannot test for” and that she needs to be in a well-ventilated room free of offensive orders and perfumes Teacher who is sometimes assigned sub position submits a doctor’s note stating that new work environments cause her stress and anxiety Vet with PTSD says he cannot meet with his supervisor as it is a “trigger” for him

Accommodating Students in Extracurricular Activities

Accommodating Athletes, Actors, and Astronomy Clubbers • • January 25, 2013 “Dear Colleague” letter from OCR Extracurricular activities are considered part of the “overall education program” Schools must make reasonable modifications and provide aids/services that are necessary to ensure an equal opportunity to participate No modifications if making them will fundamentally alter program or compromise safety standards

From the desk of a school law attorney • • Student on the football team has been diagnosed with ADA and has a 504 plan. He has missed numerous practices and work out sessions. As a result, coach is afraid he will get clobbered and doesn’t play him. Mom files an OCR complaint, alleging failure to develop accommodations for football. Student on the softball team has anxiety. Requests that coach not critique her performance, particularly in front of other players. Also requests that she be given at least 24 hours’ notice regarding whether she will pitch.