Nondiscrimination Laws Applicable to Public Education Special Education

Nondiscrimination Laws Applicable to Public Education Special Education and the Law Winter 2010 Sherrie Brown

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)

504 Regulations… l 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)

The Americans with Disabilities Act (ADA) l l 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.

ADA includes five substantive areas Ø Ø Ø l l Title I: Title II: Employment Programs and Services of State and Local Government Title III: Public Services and Facilities Operated by Private Entities Title IV: Telecommunications Title V: Miscellaneous

What is important to remember about ADA and schools…. l l 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. – – l Compliance coordinator Transition plan All IDEA eligible students are also protected by ADA and 504.

Qualified individual is student… l l l 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)

Who is “disabled” – i. e. , protected? l 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)

Legal Terms of Art l Mental or physical impairment – l Substantially limits – l Broad and infinite list…examples provided by regulations Torturous legal history but clarified/broadened with the ADA Restoration Act. Major Life Activity – – Expanded by Restoration Act Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking breathing, learning, reading, concentrating, thinking, communicating, and working.

ADA Restoration Act 2008 (effective 1/2009) l l Congress rejected US Supreme Court’s interpretation of the definition of “disability” in cases 1999 -2000. In determining whether a person is “disabled” for purposes of ADA (and 504), the ameliorative effects of mitigating measures will not be considered—such as medications/AT/adaptive neurological modifications. – l l However, does not apply to ordinary eyeglasses or contact lenses. Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Yet to see any practical changes in the schools with the statutory changes…could increase the number of students eligible.

In educational terms…qualified student with disability l l Must have a physical or mental impairment which substantially limits a major life activity-- e. g. , learning. Learning is substantially limited if child receives no educational benefit from “regular education. ” Qualified student with disability must be provided aids, benefits, or services as effective as those provided non -disabled students. Can be temporary or episodic impairment.

Who enforces 504 and ADA in schools? l l 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

Basic civil rights objectives of Section 504 and ADA l l l l 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).

Major Principles l l l Protection from Discrimination Reasonable Modification* Free Appropriate Public Education Program Accessibility Comparable Facilities *see page 130 of Yell

Protection from Discrimination l l 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

Reasonable Modification l l 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.

FAPE l l 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

Program Accessibility l l 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.

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

School District Responsibilities l Procedural Responsibilities – – – l 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

FAPE is defined in Section 504 as l Regular or special education and/or related aids and services which are designed to meet the individual needs of disabled students as adequately as the needs of non-disabled students are met.

When to consider eligibility? l l l 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.

Continued… l l l 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.

Section 504/ADA DOES NOT require: l l l IEP—does require a plan with modifications, etc. Parents to be part of 504 plan development— but participation recommended. Independent evaluation (no right to this). Stay-put. Federal funding following the student.

Section 504 Accommodation Process l l l 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

Types of Accommodations* l l 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) l l Change the curriculum – Same content/less material – Same subject area/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.

Accommodations are appropriate l l l If Reasonable If Fair If Individualized If Developed for Students (not parents) If Consistent Such as…rearranged classroom seating, modified grades/curriculum, test modifications, extended time, use of calculator, use of peer notes, tape record lectures, books on tape, study guides, correct but not penalize spelling, etc.

Current legal issues l l l Who is protected? Discipline of students who are 504/ADA ONLY Athletics and other extracurricular activities – – l l Reasonable modifications to rules Provision of auxiliary aids and services Harassment of students with disabilities Overrepresentation of minority students in special education—particularly in discipline

Washington State Law Against Discrimination (RCW 49. 60) l Originally passed in 1949; amended in 1973 to include people with physical, mental and sensory disabilities. – – – l l l Disability had been interpreted by HRC and courts to be broad. Mc. Clarty 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 accommodation—i. e. , schools except those operated by bona fide religious or sectarian institution. Guarantees students the full enjoyment of the benefits and services from schools—including 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.

Differences between RCW 49. 60 & ADA l l Definition of disability. Damages and remedies available are broader—e. 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.

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

Case Examples… l Physical access cases: – – l Washington DC school district sued in 1999 by Freddy Ramirez (9 year old boy with CP) because he couldn’t 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

Cases continued… l Evaluation/Discipline: – Seattle SD No. 1 (OCRX 2005) l l 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.

Baird v. Rose l l FACTS? ISSUE(S)? HOLDING? REASONING? Group #1

Examples of Harassment that could create a Hostile Environment l l 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.

In Summary ADA Section 504 l l 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, postsecondary education programs, & health, welfare & social services. l l 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.