Tag Archives: ADA

Dawg Bones

Is taking a full year off a “reasonable accommodation”?

Brenda Fields lost her case for several reasons.  She claimed to be a victim of disability discrimination.  To win her case, she had to prove that she could perform the essential functions of her job…as long as the school district provided a “reasonable accommodation.”  But the record did not support her.

First of all, the teacher made several statements to the principal that she was currently completely unable to work as a teacher. She was seeking a full year off, and then a transfer to another school.  As the court noted in its decision, “Reasonable accommodation does not require [an employer] to wait indefinitely for [the employee’s] medical conditions to be corrected.”

Second, she got the payments for her student loans deferred due to her complete inability to work, a position that her psychiatrist supported.

Then there was the fact that she sought disability payments from her private insurance company, again, accompanied by statements of her complete inability to return to work.

So let’s see.  Here we have a person who has made statements to third parties indicating that she just can’t work at all right now. She has also informed the school that she can’t work right now and that it will be at least a year before she can.  The court concluded that Ms. Fields was not a “qualified” individual with a disability. To be “qualified” she had to be able to perform the essential functions of the job, with only a “reasonable accommodation.”

The case is Fields v. St. Bernard Parish School Board, decided by the federal court for the Eastern District of Louisiana on October 16, 2000.  We found it at 2000 WL 1560012.

DAWG BONE: A ONE YEAR SABBATICAL WILL PROBABLY NOT QUALIFY AS A “REASONABLE” ACCOMMODATION. 

 File this one under: ADA and SECTION 504

TOMORROW: THROWBACK THURSDAY LOOKS AT MR. CHOPLICK’S CASE

Dawg Bones

GOT ANY SERVICE ANIMALS IN YOUR SCHOOL?

Many of you have heard me make the observation that in special education litigation, courts are always assessing the “reasonableness” of the parties. I recently came across a ruling by the Department of Justice that provides a good example of a situation where it appears that the school district came across as the unreasonable party, even though the school was applying the law exactly as it is written.

The ruling arose in an investigation by the Department of Justice regarding a school district’s refusal to allow a student to bring a service dog to school unless the parent provided an adult handler for the dog.  The DOJ found the school in violation of the ADA and ordered it to modify its policies and practices to permit the student to use the dog, even though it would require some minimal assistance from school staff.

This report includes a detailed analysis of the facts. The dog required minimal attention and the child already had a 1:1 aide accompanying her all day long who could assist with the dog.  There was no question that the dog was helpful, including detecting seizures in advance.  Significantly, the child had had the dog with her at school for four years without incident. In pre-school, the dog accompanied the child without an adult handler. When the child went to kindergarten, the district insisted that the parent must provide a handler.  The federal regulations require that the person who needs the service animal must be able to “handle” the animal. Since this child was unable to do that independently, the school asserted that the parent had to pay for an adult to handle the dog.  Given all of the facts, however, the DOJ concluded that the ADA requires the district to allow the dog to accompany the child without a separate adult handler.

It’s dangerous for a district to discontinue providing an accommodation unless there is an obvious reason for the change.  The ruling came in Re: Gates-Chili Central School District, 65 IDELR 152 (DOJ, 2015).

DAWG BONE: THINK TWICE BEFORE YOU DISCONTINUE AN ACCOMMODATION THAT HAS BEEN PROVIDED. 

Dawg Bones

SAD ACCOMMODATIONS

Dear Dawg: One of my teachers sent me a memo that said: “I am SAD.  I’d like to meet with you to discuss how you can accommodate me.”  What the hell is this about?  He’s SAD?!  Well, I’m so sorry about that. I’ve had my SAD days too, but you press on. What am I supposed to do by way of “accommodation”?  Give him a candy bar?  Tell him to take the day off?  Maybe a nice shoulder rub?  I’ve drafted a response, and I’d like your input. Here’s what I plan to say:

Dear Teacher: I hear you are SAD.  Awwwwww!  You poor thing!!   I am soooooo sorry!  Now kindly get over your self pity and get back in the classroom to do the job we pay you to do.  I am often SAD as well. At other times I am HAPPY.  Sometimes I feel ANGRY.  Like when teachers put their personal problems ahead of their professional responsibilities.  That makes me ANGRY.  Sometimes I get so ANGRY that I fire the teacher.  This makes me HAPPY.  I THINK YOU GET THE MESSAGE.

Waddyathink, Dawg?

Dawg:  We think you should slow down, Pardner.  We expect that the teacher did not mean “sad” but rather, S.A.D.—Social Anxiety Disorder.  This condition, previously called “social phobia” is recognized by the DSM-V as a mental disorder.

This came up in an employment case recently decided by the 4th Circuit. The employee claimed that she was terminated because she had a disability (S.A.D.) and because she sought accommodation for it. The court held that she presented a plausible case, and was entitled to a trial to attempt to prove up her facts.

This is one of the first cases to reach a Circuit Court level that addresses the expansion of the Americans with Disabilities Act.  In 2009, Congress deliberately broadened the scope of this law in an effort to cover more people.  In this case, the employer argued that whatever the plaintiff’s condition, it did not “substantially limit” her in any “major life activity.” The plaintiff asserted that her S.A.D. rendered her substantially limited in her ability to “interact with others.” The employer countered by arguing that “interacting with others” is not a “major life activity.”

The statute (ADA) includes a list of “major life activities” and it does not include “interacting with others.” But the EEOC regulations do include it.  The court held that the ADA list was “nonexhaustive” and it was well within the discretion of the EEOC to include “interacting with others” as a major life activity. The Court looked at it this way:

Few activities are more central to the human condition than interacting with others.  If “bending” and “lifting” are major life activities, [cite omitted] it is certainly reasonable for the EEOC to conclude that interacting with others falls in the same category.”

So don’t blow this off, Buddy.  Call your teacher in for the beginning of the “interactive process.” Keep in mind that S.A.D. as a mental disorder is a serious condition—it’s a long way from simple shyness or slight nervousness in social situations. But if a teacher claims to have this condition, you should explore it, and determine if accommodation is called for, and reasonable.

The case is Jacobs v. North Carolina Administrative Office of the Courts, decided by the 4th Circuit Court of Appeals on March 12, 2015.

DAWG BONE: S.A.D. IS NOT THE SAME THING AS SAD. 

 

 

Dawg Bones

WHAT MAKES SOME TESTING ACCOMMODATIONS ALLOWABLE WHEN OTHERS ARE NOT?

A recent case from Illinois reminds us that accommodations for students with disabilities are designed to level the playing field—not to give any student an advantage over others.  The case involved K.P., an 8th grader in Chicago whose IEP called for her to use a calculator in her math class. The IEP also permitted any “allowable” modifications in standardized testing.

Chicago requires 8th graders to take a MAP test (Measure of Academic Progress) as part of the application process to the city’s more selective high schools.  The math portion of the MAP test is taken on a computer, and on some of the questions, a calculator pops up on the screen. Thus on those questions, all students are allowed to use the on-screen calculator.  On other questions, there is no calculator provided and students are expected to do their own calculations without a device.

When K.P.’s mother was informed that her daughter would not be allowed to bring her own calculator to the test, she sued the Chicago Public Schools, alleging that this violated IDEA and the ADA.

The court ruled for the school district.  The critical factor was that the math portion of the MAP is designed to assess the student’s ability in math—including the ability to do mathematical calculations without assistance.  An accommodation is not “reasonable” if it would cause the test results to be invalidated.  Referring to the use of a calculator to work out math problems, the court said:

That is not a reasonable accommodation but a substitution of artificial intelligence for the very skill the Test seeks to measure.

The case is K.P. v. City of Chicago Public School District #299, decided by the federal district court for the Northern District of Illinois on February 25, 2015.  We found it at 65 IDELR 42.

DAWG BONE: TESTING ACCOMMODATIONS ARE TO MAKE THINGS FAIR, NOT TO PROVIDE AN ADVANTAGE.

 

 

Dawg Bones

WHEN THE DOCTORS DISAGREE…

We suspect that no one was acting in bad faith. The teacher in Palo Alto, California, faced a dilemma.  She knew that a child in her class had cystic fibrosis (CF).  Then she found out that another child in the same school—the court calls him C.C.--also had CF.  Or at least that’s what the teacher thought she heard.  So in a parent teacher conference, she told the other parents about C.C.’s condition. She did not have permission from C.C.’s parents to disclose this sensitive information.

On September 11, 2012, school officials told the Chadams, C.C.’s parents, that another child’s parents had “discovered C.C.’s condition.” But the Chadams denied that their son had CF.  Genetic screening that had been done when C.C. was a newborn indicated that he had the “genetic markers” for CF, but he did not have the actual disease.  However, two days later the school received a letter from a doctor recommending that C.C. be removed from the school for the protection of the child who did have CF.

It didn’t take long for the Chadams to produce their own doctor’s letter, which stated that C.C. had never had CF and posed no health risk whatsoever.

Hmmmm. We are educators, not doctors.  The docs disagree.  What to do?

On October 10 the school made its decision, removing C.C. from Jordan Middle School.  The Chadams promptly filed for an injunction to get him back to Jordan. The case settled before going to court and C.C. returned to Jordan Middle School just two weeks later.

But a year later, the parents filed another suit, this time alleging, among other things, that the school district violated the ADA and Section 504.

To win, the parents had to prove that 1) C.C. was a qualified individual with a disability; 2) he was excluded from, or denied the benefits of services or programs, or otherwise discriminated against; and 3) this exclusion, denial or discrimination was based on his disability.   In yesterday’s entry, we explained how the parents were able to establish that C.C. qualified as a person with a disability, even though he was not impaired.  Nevertheless, the court ended up ruling for the school district, based on its conclusion that the district acted on its effort to preserve the safe operation of the school.

ADA regulations specifically allow governmental entities to “impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” This has to be based on “actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

This case presents an interesting scenario because it looks like the school acted on incorrect information. It turned out that C.C. did not have CF.  However, the school did have recommendations from a doctor that it relied on. Moreover, the “exclusion” was not an exclusion from educational services, but only from Jordan Middle School for a brief period--two weeks.

The court seemed to apply the sometimes uncommon tool of common sense.  The school was caught in a dilemma. There was clearly no intent to discriminate against anyone, just a desire to make sure that all parties were kept safe.  And no doubt, the fact that the exclusion was of short duration, and only to another middle school, factored in.

The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: WHEN THE DOCTORS DISAGREE, CALL YOUR LAWYER.

 

 

Dawg Bones

WHAT DOES IT MEAN TO BE “REGARDED AS” HAVING A DISABILITY?

We have an interesting case from California in which the court wrestled with the notion of “regarded as” having a disability.  As you well informed readers already know, both Section 504 and the ADA define people as having a disability if they 1) actually have one; 2) have a record of one; or 3) are regarded as having one.  Litigation over that third prong in the definition is rare, so let’s take a look at this case.

The case involves a boy named C.C., who had genetic screening done on him as a newborn.  The screening showed that he had the “genetic markers” for cystic fibrosis (CF).  He didn’t actually have CF, but he had the markers.

Fast forward to when C.C. is at Jordan Middle School in Palo Alto.  Somehow, one of the teachers gets hold of C.C.’s medical records, and sees some reference to CF. She is concerned.  There is another child in the school who has CF.  What to do?

The teacher decides to tell the parents of the other kid about C.C.  The court did not rule on the FERPA aspect of this, so let’s just set that aside for today. What the court addressed was the suit by C.C.’s parents, claiming disability discrimination after he was involuntarily transferred out of Jordan Middle School for two weeks.

The court ruled in favor of the school district, for reasons we will explain tomorrow. But for today, let’s look at what the court said about C.C.’s status as an individual with a disability.  He didn’t actually have cystic fibrosis. Does he qualify as an individual with a disability?  The court ruled that he did.

To meet the definition of a person who is “regarded as” having a disability you must show that you suffered discrimination because of an actual or perceived impairment, whether or not that impairment limits or is perceived to limit a major life activity. As you can see, much of this lies in the perception.

Here, the court concluded that C.C. made a good start in his lawsuit. He alleged facts that would show that the school district “acted on the basis of a mistaken belief about C.C.’s status as a genetic carrier for CF and, hence, regarded him as disabled.”

Nevertheless, the school district prevailed in this case. We will talk about that tomorrow. The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: YOU CAN SUE UNDER THE ADA AND 504 BASED ON AN ERRONEOUS PERCEPTION OF YOU THAT LEADS TO DISCRIMINATION.

 

 

Dawg Bones

CAN YOU DISCRIMINATE BASED ON DISABILITY WHEN YOU DIDN’T MEAN TO?

A federal court has concluded that the Ohio High School Athletic Association may be guilty of disability discrimination, even though it had no intention of doing so. The case illustrates an important point regarding Section 504 and the Americans with Disabilities Act.

The case involved a student with a learning disability who attends a private high school in Cincinnati. He wants to play soccer for his high school team. In Ohio, private schools are part of the OHSAA, so that’s not the issue. The problem is that he doesn’t live in Ohio—he lives across the river in Kentucky. The OHSAA has an “Instate Residency Rule” that simply says you have to live in Ohio to participate in interscholastic sports. There are some exceptions, but none that applied to this student. So his parents went to court to seek an injunction to allow him to play.

They got it.

The court ruled that the parents did not have to prove that the OHSAA acted with any sort of bad intention. They only had to prove that the Association refused to provide an accommodation that was reasonable. The requested accommodation would be deemed “reasonable” unless the OHSAA could prove that granting the request would create an undue burden, or require a fundamental alteration of the program.

The OHSAA was unable to convince the court that granting this waiver would open up the proverbial floodgates. Restricting participation to Ohio residents had no bearing on safety, and was not necessary to prevent “redshirting.” The court was convinced that the Association could craft a limited waiver process “based on easily verifiable, objective criteria” that “would apply to only a narrow pool of potential students, and would not result in a substantial administrative burden.”

The case is Steines v. Ohio High School Athletic Association, decided by the federal court for the Southern District of Ohio on November 10, 2014. We found it at 64 IDELR 165.

DAWG BONE: IF YOU CAN ACCOMMODATE THE DISABILITY WITHOUT “UNDUE BURDEN” OR “FUNDAMENTAL ALTERATION” YOU HAVE TO DO SO.