Tag Archives: Section 504

It’s Toolbox Tuesday!! What about 504?

Whenever I do the Toolbox training, someone is sure to ask about Section 504.  The Toolbox provides ten “tools” for school administrators to use when dealing with disruptive and/or violent student behavior.  The goal is to have a set of tools that empower campus administrators to serve each student appropriately while providing safety for all.  The Toolbox and its tools are all based on IDEA—our federal special education law—and the state law provisions regarding special education.

So it’s a natural question: what about 504?

The short answer to the question is that almost all of the procedures that schools use with special education students should be used when dealing with a student served under 504.  Do you have to count your days and determine if you have “changed placement”?  Yes. Do you have to conduct a manifestation determination prior to long term disciplinary action?  Almost always.

There are a few distinctions, but for the most part, the IDEA procedures provide a good framework for how you handle 504-eligible students.

Interested in a Toolbox day?  If so, just let me know!

DAWG BONE: 504 PROCEDURES FOR DISCIPLINE ARE PRETTY SIMILAR TO IDEA PROCEDURES

File this one under: SECTION 504

Tomorrow: a superintendent’s ethnic stereotype, a blunt message, and an improved principal.

Is your school’s website accessible?

The Seattle Public Schools recently settled a lawsuit filed by a parent and the National Federation of the Blind. The issue was accessibility of the district’s website for people with visual impairments. The settlement will require the district to employ an accessibility coordinator, conduct an accessibility audit, develop a remediation plan and add language to RFPs to require vendors to comply with accessibility guidelines. The estimated cost to the district was between $665,400 and $815,400. Yowza!

As websites become increasingly important they will draw more attention in terms of accessibility. Federal guidelines on this subject are in process. Complaints against Texas schools have been made, so this is an issue that is worth the attention of someone in your district.

We’ve had some experience with this at the Walsh Gallegos law firm, so if we can help, just give us a call.

DAWG BONE: THE WEBSITE IS NO GOOD FOR ME IF I CAN’T READ IT.

File this one under: SECTION 504

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

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. 

IT’S STILL HOT AROUND HERE!! CAN I DRIVE THE AIR CONDITIONED BUS?

We do look for fall to befall us sometime this month, but it has been known to stay mighty hot in Texas in late September and early October. So we read with interest the recent 11th Circuit decision about the bus driver who requested a transfer to an air conditioned bus.  When this request was not granted, the driver sued, alleging racial discrimination, illegal retaliation, and a failure to accommodate her disability.

The 11th Circuit found possible merit in only one of those theories—the one based on disability. In the muggy heat of August in Atlanta the driver alleged that she had to pull over to the side of the road due to shortness of breath. Two medical opinions bolstered her case, stating that her difficulty breathing during extreme weather was indicative of a physical impairment.

The school district claimed that it could not accommodate this request. It had some buses with AC, but they were all spoken for by drivers with more seniority.  The Americans with Disabilities Act requires employers and governmental entities to “reasonably accommodate” people with disabilities unless doing so would cause “undue hardship” to the employer. The court noted that the plaintiff had previously driven an air conditioned bus, and “so it is difficult to understand how reassignment would upset the bus-allocation process in such a way as to cause undue hardship.”

This case has a long way to go, but at this stage, the court has held that the plaintiff should have her day in court.  Her allegations create fact issues that a judge or jury will need to sort out.

So what can we learn from this case?  Pay attention to medical reports you receive that indicate that an employee has a “physical or mental impairment” that substantially limits them in a “major life activity.” I think we can all agree that breathing ranks right at the top of “major life activities.”  If you get such a report, get creative and flexible in devising “reasonable accommodations” that will enable the employee to continue to work.

The case is Hill v. Clayton County School District, decided by the 11th Circuit Court of Appeals on August 7, 2015. You can find the case at 2015 WL 4663755.

DAWG BONE: SWITCHING THE DRIVER TO A BUS WITH A.C. MIGHT BE A “REASONABLE ACCOMMODATION.”

MY FAVORITE “START OF THE SCHOOL YEAR” STORY…

The call came in to our office shortly after lunchtime on the first day of school—not this year, but several years ago.  It seems that the 15-year old had just showed up that morning—no phone call, no personal visit, no registration before that.  Of course it’s chaos on the first day, so they just tossed the boy into some classes and planned to figure it out later.

Then the teacher marched him to the office after lunchtime, and charged him with urinating on the playground. Investigation ensued, which revealed that: 1. His family just moved here from somewhere in Central America; 2. He’s never attended school before—any kind of school; 3. He speaks no English and understands “poquito” at best.  4.  He peed on the playground because he didn’t know there was an alternative, having not encountered indoor plumbing.

The district was calling because they wondered if they should classify this student as eligible for services under Section 504. The answer to that is: NO.  This student is what I call WBFWR—Way Behind for Whatever Reason.  He needs special help, but not special ed, and not 504 either.

Obviously this student needs a lot of assistance.  I call kids like this WBFWR, but truthfully, it’s easy to figure out why this student is behind. He is 15 and never been to school.  He is at a cultural disadvantage in our country. And even if he had been properly educated in a good Central American school, the language issue alone indicates that the student needs special attention.

But not special ed.  Special education is for students who need special help because of a disability.  There is no indication of a disability here. As for 504, it is designed to accommodate students who need accommodation due to a physical or mental impairment.  Again, no indication of that here.

DAWG BONE: KIDS CAN BE WBFWR AND NOT NEED SPECIAL EDUCATION OR SECTION 504 SERVICES.  

IT’S GETTING HOT AROUND HERE. AND FOOTBALL PRACTICE IS NOT TOO FAR OFF . . .

In 2007, the Texas Legislature beefed up safety requirements in connection with extracurricular activities.  Section 33.201, et. seq. of the Education Code spell out a variety of requirements, including such things as adequate hydration for athletes during practices and games.  I remember in my annual “Back to School” tour for that year predicting that these safety standards would be cited in future cases alleging that the school district, or the coaches, should be held liable for a student injury.

So let me introduce you to the case of Ripple v. Marble Falls ISD.  Blake Ripple alleged that he suffered injuries playing football in high school.  In the suit, he alleged that the district failed to identify him as a student with a disability under Section 504, and failed to “keep him safe from harm and failed to provide him an environment that was not injurious to his physical well-being.”

The school district prevailed in the lawsuit.  The coaches never put Blake back into the game when he was hurt, they had a doctor’s clearance for him each year, and they complied with all of the safety requirements.  The legal wrangling is more complicated than we have time for here, but it’s worth pointing out that one of the allegations was that the student became severely dehydrated after an August practice.  Fortunately for the school district, the coaches were able to produce evidence that they provided water breaks and otherwise complied with the safety requirements.

So today’s Dawg just offers a reminder about these things.  Make sure your coaches review the requirements of Subchapter F of Chapter 33 of the Texas Education Code, which begins with Section 33.201.  Full compliance will be important in the event of future litigation. More important than that, full compliance will go a long way toward maintaining safe conditions for all of the kids.

The case is Ripple v. Marble Falls ISD, decided by the federal court for the Western District of Texas on March 27, 2015.

DAWG BONE: KEEP THAT WATER FLOWING DURING TWO-A-DAYS!

 

 

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.

 

 

REVOCATION OF CONSENT FOR SPECIDAL EDUCATION SERVICES

The parents revoked consent for us to provide special education services, but this kid is a real behavior problem.  If he commits a serious offense, do we have to do a manifestation determination?

Houston ISD faced that dilemma during the 2013-14 school year. According to the report of a subsequent OCR investigation, the parents revoked consent for special education services on November 7, 2013.  From then until the following March the school suspended the student out of school 16 times.  The district did not consider whether or not this series of removals amounted to a “change of placement.” Nor did the district conduct a manifestation determination.  After all, the student was no longer in the special education program, no longer protected by IDEA.

OCR was brought in to investigate a parent complaint of discrimination over this issue and two others.  OCR did not find the district at fault with regard to any of the three issues presented.  One was dismissed because it was already the subject of another proceeding. A second issue was dismissed for lack of evidence to support it. But on the discipline issue, the district agreed to a voluntary resolution.

That resolution agreement required the district to 1) re-evaluate the student as per Section 504;  2) belatedly conduct a manifestation determination regarding those 16 suspensions; and 3) if the behavior is deemed to be a manifestation of the student’s disabilities, provide compensatory services.

Note that OCR did not order the district to do this and did not express the opinion that the district was required to do this.  The law on this subject is murky.  Parents who revoke consent for services under IDEA should be told very clearly that the protections of IDEA regarding discipline will no longer be provided.  But as to Section 504, we have no clear guidance.  Courts have come to different conclusions about the availability of Section 504 after IDEA services cease.  None of the cases, to date, has directly addressed the issue of student discipline, the notion of “change of placement” and the requirement of a manifestation determination.

The best practice is to consult with your school district attorney on this issue, as it calls for a careful case-by-case analysis.  We found the Houston ISD matter at 65 IDELR 52.   The OCR report is dated November 26, 2014.

DAWG BONE: ON REVOCATION OF CONSENT, GET YOUR LAWYER INVOLVED!

 

 

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.