Tag Archives: Section 504

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.

 

 

 

Dawg Bones

WRONGFUL URINATION ENDS UP IN FEDERAL COURT

Happy Fat Tuesday! For our pre-Lenten offering, let us consider how a school district in Washington prevailed in a lawsuit over disability discrimination.

The middle school principal assigned the student to Saturday school as a punishment after the student urinated on the floor, walls and sink of the school. We are wondering how the Student Code of Conduct addressed this behavior. “Wrongful urination” maybe? But you must also be asking: how does something like this end up in federal court? Can’t you just imagine the federal judge, sipping the morning’s first coffee, asking the bailiff: “what do we have on the docket today?” The bailiff responds: “A 7th grader peed on the floor at school, Your Honor.” Hizzoner would be asking himself: “when did I become the assistant principal?”

Of course, there was more to this lawsuit than this one incident. The parents alleged that the school had refused to implement the boy’s 504 plan in a variety of ways, or had done so inconsistently. There were allegations that teachers disparaged the student, and that the school ignored evidence of bullying. So the lawsuit was over a lot of things.

With regard to this particular incident, the parents alleged that other kids were involved in the incident, but only their boy was punished. They asserted that another student turned off the lights in the classroom. This caused our plaintiff “anxiety and loss of bladder control.” Sure enough, the student was on a 504 plan, and one of his issues was “anxiety.”

The court dismissed the lawsuit, largely due to the failure of the parents to present any evidence of intentional wrongdoing by the school. Claims seeking damages under Section 504 require evidence of intentional discrimination.

On this particular claim, the court relied on the good investigation conducted by the school. That investigation concluded that another student did, in fact, flick off the lights “for a few seconds.” But it also concluded that the wrongful urination began before that, and continued after that. The court concluded: “The material facts show that [the school district] disciplined [the student] because [the school district] found, after an investigation, that [the student] was responsible for the incident.” Emphasis added.

The case is Held v. Northshore School District, 64 IDELR 162. It was decided by the federal court for the Western District of Washington on November 17, 2014.

DAWG BONE: A GOOD INVESTIGATION SERVES YOU WELL WHEN YOU END UP IN THE COURTHOUSE.

 

 

Dawg Bones

STUDENT WITH AUTISM FAILS TO MAKE CHEERLEADING SQUAD: IS THIS A LEGAL PROBLEM?

It’s springtime, and cheerleader tryouts are probably drawing near. A recent decision from the Office for Civil Rights provides school districts a step-by-step procedure for ensuring that your tryout procedures are fair to students with disabilities. The student with autism did not make the squad. But OCR concluded that she was not discriminated against.

The key was the fact that the school district held an ARD meeting to consider what accommodations the student would need in the tryout process. Due to the student’s autism and speech impairment, the ARD Committee determined that 1) they would provide the student a video of the tryout routine on the first day of the cheerleading clinic; 2) they would allow the student’s special education teacher to be with her throughout the clinic and the tryout process; 3) they would allow the parents to be present at the tryout.

The parent asked for one more accommodation. The parent wanted the school to allow “changes to the skills and benchmarks necessary for participation.” The school refused to do this.

The clinic was held, the tryouts were conducted and the accommodations that the school promised to provide were provided. But the girl did not make the squad. Her score was too low.

The parent filed a complaint with the OCR, claiming that the district discriminated against the girl on the basis of her disability. OCR issued its ruling on December 22, 2014, in favor of the district. Key Quote:

OCR found that CSISD convened a group of persons knowledgeable about the Student, the meaning of the evaluation data, and the placement options—as is required by Section 504. The ARD committee identified and implemented modifications for the Student that it determined were necessary to accommodate her disability. The committee determined that changes to the scoring process were not necessary, and further, that such changes would constitute a fundamental alteration of the high school cheerleading program—which is a selective activity requiring a particular level and type of athletic skill.

That same analysis applies to any “selective activity” that requires a particular level and type of skill, whether it be athletics, or music, or some other extracurricular activity. The school considered the matter on an individualized basis, and provided accommodations to make sure that the girl was assessed on the basis of her ability, not her disability. But the school held fast to the scoring criteria.

Kudos to College Station ISD for how it handled this matter.

DAWG BONE: MEASURE THE STUDENT’S ABILITY—NOT THE DISABILITY.

 

 

Dawg Bones

WHAT TO LOOK FOR IN A 504 COORDINATOR

I was surprised when I found out that the man listed in the school’s “504 Manual” as the “504 Coordinator” had died three years earlier.  I felt that the superintendent should know about this. So I went to her office and asked: “Did you know you’ve got a dead man for a 504 coordinator?”

“Yes,” she coolly replied.  “It’s part of our strategic plan. If the parents get angry and call, we’ll just say, ‘Sorry.  He can’t come to the phone.’”

I pointed out that such a “strategy” would not work for very long. She let me know that she would not be in the district much longer.

Part of this story is true, and I’ll let you figure out which part.  But the episode got me to thinking about what we need in a 504 coordinator.

The responsibilities of the 504 coordinator have grown over the past few years.  In 2009, Congress expanded the definition of who is to be served under Section 504.  That change in the law, combined with an increase in public awareness of Section 504 has led to many more referrals.

So the 504 coordinator needs a lot of training to keep up with the law.

On top of that, the coordinator needs to have a good sense of the importance of process.  Section 504 is as much concerned with process as it is with results.  The Office for Civil Rights, which enforces 504, promises not to overturn a decision made by a local school district, even if they disagree with it, as long as they see that you followed the right process.

The coordinator also needs to have some authority within the district to make sure that 504 plans are implemented. 504 teams are much like ARD Committees. Once they determine what the student needs, the district is required to see to it that the student gets what he/she needs. So if a teacher is not taking a 504 plan seriously, the 504 coordinator needs to have some authority to take action.

So you need a pretty sharp cookie to serve as 504 coordinator. And first and foremost, one who can still fog a mirror.

DAWG BONE: FIRST REQUIREMENT FOR A 504 COORDINATOR—STAY ALIVE!