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New York Association of School Psychologists (NYASP) Conference Legal Update for School Psychologists October 26, 2013 James P. Drohan, Esq. (

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Presentation on theme: "New York Association of School Psychologists (NYASP) Conference Legal Update for School Psychologists October 26, 2013 James P. Drohan, Esq. ("— Presentation transcript:

1 New York Association of School Psychologists (NYASP) Conference Legal Update for School Psychologists October 26, 2013 James P. Drohan, Esq. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP 2517 Route 52 Hopewell Junction, NY 12533

2 I. IDEA Update 1. Tuition Reimbursement For Parental Placements.
In C.L. vs. Scarsdale Union Free School District, the Second Circuit Court of Appeals will be deciding whether a parent’s unilateral placement can be appropriate even if it does not necessarily meet the “least restrictive environment” requirement of IDEA. The United States Department of Justice has submitted an amicus curiae brief suggesting that the parent should not be held to the same test as a school district; instead, they would only need to show that there were not other private placements less restrictive and available.

3 IDEA Update / C. L. (Cont’d)
Current law (in the Second Circuit) is that IDEA’s least restrictive environment provisions are a consideration bearing on the appropriateness of the parent’s unilateral placement. See, M.S. v. Bd. of Ed. Of the City School Dist. of Yonkers, 231 F.3d 96 (2d. Cir. 2004).

4 IDEA Update / C. L. (Cont’d)
NYSSBA and NSBA have filed “friend of the court” briefs with the Second Circuit, urging that the Circuit Court not adopt the position of the DOJ. C.L. was argued in June, 2013, and the parties are awaiting a decision.

5 IDEA Update / C. L. (Cont’d)
Under the DOJ’s proposed formulation, in tuition reimbursement cases, the school district would bear the burden of identifying less restrictive private placement options available.

6 2. Parent’s Right to “Veto” a CSE Placement
In Decision No (12/15/11), the SRO reversed a hearing officer’s decision requiring a District to fund a unilateral residential placement for the student, holding that a parent has no right to unilaterally “veto” an appropriate placement, and then ask the CSE to find a new placement.

7 3. Conduct of “Resolution Meeting”
On October 3rd, 2013, a federal court dismissed (based upon immunity and other grounds) a school district’s challenge to SED’s directive that the District cease and desist from unilateral changes to CSE – recommended placements at resolution meetings. SED claimed there existed a “pattern and practice” of failing to implement CSE placements. East Ramapo CSD v. DeLorenzo – No. 13-CV-1613 (S.D.N.Y. 2013)

8 Conduct of “Resolution Meeting” (Cont’d)
In East Ramapo, SED took the position that the resolution process the District employed was illegal, since: i the meetings were conducted without the District having received a due process complaint; ii. were conducted without appointing an impartial hearing officer; iii. the meetings were pro forma; iv. the staff at the meetings were not CSE members with specific knowledge of the facts; v. there was no evidence the process was available to all parents of students with disabilities.

9 4. What is “predetermination” and why might it be a bad thing?
Case law says that while members of a CSE are entitled to have opinions prior to a meeting, CSE members must come to the meeting with an open mind regarding a student’s special education needs. To do otherwise would constitute predetermination. See, e.g., P.C. v. Milford Exempted Village Schools, 60 IDELR 129 [S.D. Ohio 2013].

10 Predetermination (Cont’d)
Q. Is it generally a good practice to have a “pre-meeting” without the parents prior to the actual CSE? How about a draft IEP?

11 5. Does the school district always have to follow RTI if the parent requests an evaluation?
OCR has held that if the parents request an evaluation during the RTI process, the District must either grant the evaluation or deny it and give the parents notice of their due process rights.

12 6. Class Profiles Q. Do IDEA or its regulations require that parents be provided with a “class profile”? A. No. Cerra v. Pawling CSD 427 F.3d. 186 (2d. Cir. 2005).

13 Class Profiles (Cont’d)
Q. But should you be prepared to provide a class profile to the parent as part of an impartial hearing defense?

14 7. Is the CSE entitled to a “Heads Up” regarding issues or concerns the parents may bring to a CSE meeting? In Letter to Northrop, 61 IDELR 264 (OSEP 2013), OSEP advised that school districts can not adopt a “blanket” policy requiring parents to provide a written statement of their concerns to the CSE three days before a CSE meeting, in order to have those concerns addressed at the meeting.

15 “Heads Up” (Cont’d) But it is ok to have a policy requiring parents to share new evaluations at least three days prior to CSE, if they want them to be considered at the meeting . . .

16 8. Q. Can parents successfully bring a claim under the IDEA that their child was improperly classified as a student with a disability? A. According to the United States Court of Appeal for the Third Circuit, the answer is “no”, since the term “child with a disability” under IDEA does not include children who are mistakenly identified as disabled, but who are, in fact, not disabled. S.H. v. Lower Merion School District 2013 U.S. App. Lexis (3d Cir. 2013)

17 Improper Classification (Cont’d)
However, the “Third Circuit” did say that the parent of a child improperly classified under the IDEA could potentially sue under section 504 or the ADA (since these statutes extend their protections to students “regarded as” disabled), if the parents can show the District was “deliberately indifferent” to the student’s misclassification.

18 9. At impartial hearing, can this District “Open The Door” to arguments not raised in the parents’ due process complaint? Yes, according to one court. In P.G. v. New York City Board of Education, 61 IDELR 258 (S.D.N.Y. 2013) a federal court held that the parents could argue that a 12:1:1 class was inappropriate (even though it was not in their complaint), as the District brought it up in its opening statement and on direct examination of a witness.

19 10. RTI – Transfer Students
According to OSERS, school districts cannot use RTI as a reason to expand the typical 60 day window for evaluating students who have transferred in mid-year. In a 7/19/13 “Dear Colleague” letter, OSERS advised that where a “highly mobile” child has transferred after an initial evaluation was initiated but not completed the new school district must complete the evaluation “expeditiously.”

20 RTI – Transfer Students (Cont’d)
However, OSERS added that 60 day requirement will not apply if: A. The new school district is making sufficient progress to ensure prompt completion of the evaluation; and B. The parent and the new school district agree to a specific time by which the evaluation will be completed.

21 11. Resolution Sessions According to OSEP, a district cannot refuse to discuss the issues raised in a parents’ due process complaint at a resolution meeting. Letter to Casey, 61 IDELR 203 (OSEP 2013)

22 12. Conditions on Return to School
Q. Can a school district condition a regular education student’s return to school on the parents’ consent to IDEA services? A. A federal court in New Jersey has let stand a claim that a school district may have discriminated against an elementary school student under §504’s “regarded as” prong by allegedly conditioning the child’s return to school on consenting to receipt of services under IDEA. M.G. v. Crisfield 547 F. Supp. 2d 399 (D.N.J. 2008).

23 13. Conditions on Return to School (Cont’d)
Q. Can a school district condition a regular education student’s return to school on the parents’ obtaining a psychiatric evaluation?

24 14. IDEA – LRE - Mainstreaming
In V.M. v. North Colonie CSD, 61 IDELR 134 (N.D.N.Y. 2013), a federal court upheld a CSE’s decision to limit general education instruction for a Down’s Syndrome student to English and Science, where the evidence was that the student struggles (crying, sleeping, engaging in off-task behavior) in general education math and social studies, despite receiving individualized support and a “significantly modified curriculum.”

25 II. Rights of Transgender Students
1. State law in California takes effect on January 1, 2014, which will allow students to follow their gender identity when participating in sex-segregated school programs and activities including sports teams, as well as use of restrooms and locker rooms.

26 Rights of Transgender Students (Cont’d)
2. Some districts are grappling with the issue of whether enforcement of the California law might give rise to “free exercise” claims by students of certain religious faiths (e.g., those of the Mormon faith) who might argue that having someone of the opposite sex see them undressed before marriage would make them impure.

27 OCR’s Position on Transgender Students
3. According to OCR, Title IX prohibits “Gender-based” discrimination, which refers to differential treatment based on a student’s sex, including gender identity, gender expression, and nonconformity with gender stereotypes, that results in the denial or limitation of education services, benefits, or opportunities. See, Resolution Agreement in OCR Case # (Arcadia Unified S.D.)

28 OCR’s Position on Transgender Students (Cont’d)
4. In the Arcadia resolution agreement, individual actions for the student included: Providing the student with access to sex-specific facilities at school (and school sponsored activities) based on the student’s gender identity; and

29 OCR’s Position on Transgender Students (Cont’d)
2. Ensuring that any school record containing the student’s birth name, or sex assigned at birth were treated as confidential, and maintained separately, and would not be disclosed to employees or students without written consent.

1. Are s Included Under FERPA? Yes. Education records can exist in any medium including handwritten, typed, computer generated, videotape, audiotape, film, microfilm, microfiche, , and others.

31 2. Confidentiality - FERPA – Data Repositories for Student Information
Updated FERPA rules permit school districts to share student’s data with private companies (such as “inBloom”,) to whom the district has outsourced data management of student information, without parental consent. See, also “Deciding Who Sees Students’ Data.” N.Y. Times, 10/05/13.

32 In Electronic Privacy Information Center v. U. S. Dept
In Electronic Privacy Information Center v. U.S. Dept. of Education (DAJ)(D.C. Dist. Ct.) a federal court dismissed (on 9/26/13) “EPIC’s” challenge to the revised FERPA regulations permitting release of student data (without consent) to “authorized representatives” of the State in connection with audit or evaluation of federally supported education programs.

33 Confidentiality - FERPA – Data Repositories for Student Information (Cont’d)
According to SED, it has executed legally binding confidentiality agreements with each of its contracted vendors requiring them to comply with FERPA and all state policies on data security and privacy.

34 Confidentiality - FERPA – Data Repositories for Student Information (Cont’d)
SED does not and will not, collect social security numbers and health records of students.

35 Confidentiality - FERPA – Data Repositories for Student Information (Cont’d)
FERPA also allows school districts to disclose personally identifiable information from education records, without consent to a contractor to whom a district has “outsourced” services or functions.

36 Confidentiality - FERPA – Data Repositories for Student Information (Cont’d)
This exception will allow school districts to divulge personally identifiable information to outside contractors to promote improved and personalized learning in the Districts, consistent with Common Care Standards (“Data Dashboards”).

37 3. School Attorneys or Physicians
The FERPA exception authorizing provision of personally identifiable information to authorized providers (such as school attorneys or school physicians) requires that: i. The outside party provides a service for the school that it would otherwise provide for itself, using employees; ii. The outside party would have a “legitimate educational interest” in the information disclosed, if the service were performed by school employees; and

38 School Attorneys or Physicians (Cont’d)
iii. The outside party is under the direct control of the school with regard to use and maintenance of information from records. The outside provider should specifically agree to be bound by FERPA’s confidentiality requirements

39 A. The lawyer’s mantra….it depends.
4. Is the school district required to produce test protocols (e.g., for the WISC, Woodcock-Johnson, etc.) to parents pursuant to FERPA? A. The lawyer’s mantra….it depends.

40 5. Testing Protocols …If test protocols contain “personally identifiable information” (e.g., an answer sheet with the student’s name on it), that part is an “education record” accessible by the parent under FERPA.

41 Testing Protocols (Cont’d)
However, the balance of the testing protocol (e.g., directions on how to score the answers) might be proprietary information protected under Federal copyright law, and the parents may not be permitted to copy and distribute that.

42 6. Mount Olive In L.S. v. Mount Olive Bd. of Ed., 765 F.Supp. 2d 648 (D. N.J. 2011), the Court found that a violation of a special ed student’s right to privacy was stated where the school psychologist, in an effort to facilitate an inclusion class’s assignment of preparing a psychiatric evaluation of Holden Caulfield (that’s Catcher in the Rye, for those of you choosing not to remember ninth grade), provided the special ed teacher with an actual student’s psychiatric evaluation, and instructed the teacher to redact all personally identifiable information and then distribute it to the class as a template.

43 Mount Olive (Cont’d) When a number of students in the class immediately professed to know the student’s identity (based on unredacted references to age, family members, physical and psychiatric history, etc.), the report was collected The Court, however, felt these actions were sufficient to state a claim for violation of a student’s right to privacy.

44 7. Access to Education Records
Schools must honor a request from a parent to review education records within 45 days of receipt of the request. FERPA requires that schools provide parents with an opportunity to inspect and review education records, but not to receive copies, except in limited circumstances.

45 8. In addition, school employees should not rely on correspondence (as opposed to a Court order or legally binding agreement) from the attorneys for one of the parents as a basis for deciding which parent has custody.

46 9. CPS review of student records and right to interview students
CPS workers have the right to access student records involving a student where parents are the subject of CPS complaint, without parental consent. They also have the right to interview such students, without parental consent (a school administrator typically sits in on such interviews).

47 10. CPS rights to remove students from school
Typically, CPS workers do not have the right to remove the student from the school unless there is an immediate danger to the student’s health and safety, and there is insufficient time for CPS to obtain a court order authorizing such removal.

48 11. Can a teacher delete an he sent to a colleague on his home computer regarding a student, if he knows there will be a claim against the District regarding the student? A. No – even if it’s not a record under FERPA the District and its employees have an affirmative obligation not to destroy evidence (the fancy term is “spoliation of evidence”) once they know it’s likely there will be a legal claim. The may be sought by the opposing attorney to “impeach” a witness or refresh their recollection.

49 12. Student Records Q. But the parent can’t have access under FERPA to a teacher’s “personal notes,” regarding their child, right? A. It depends. Under FERPA, parents can’t access a teacher’s notes kept solely to refresh their recollection, as long as the notes aren’t shared with anyone else, expect a temporary substitute…However, the fact the parent can’t access the records under FERPA doesn’t prevent their attorney from subpoenaing the notes, in the event of a hearing or trial where the notes become relevant.

50 13. Videotapes Under FERPA, a videotape is generally not a “record” maintained by the school district (or if it is, it’s maintained by a law enforcement unit – the school security officers—which would also bring the videotape outside of FERPA’s reach) – so it would not be accessible to a parent or eligible student under FERPA.

51 14. Personal Knowledge or Observation
Per FPCO, “…FERPA does not prohibit a school official from disclosing information about a student if the information is obtained through a school official’s personal knowledge or information, and not from the student’s education records. For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information, and the teacher may disclose what he or she overheard to appropriate authorities.”

52 15. Health & Safety Exception
If the school determines there is an “articulable and significant threat” to the health and safety of the student or other individuals and that a party needs personally identifiable information from education records to protect the health or safety of the student or other individuals, it may disclose that information to appropriate parties without parental consent.

53 Health & Safety Exception (Cont’d)
The phrase “articulable and significant threat” means that if a school official can explain why based on all the information then available, the official reasonably believes the student poses a significant threat, the school official may disclose personally identifiable information without consent to any person whose knowledge of the information will help in protection from the threat.

54 16. School Safety Teams School and district-wide safety teams are considered “law enforcement units” under FERPA, and its members are “school officials” with “legitimate educational interest” Records created and maintained by law enforcement units for law enforcement purposes are exempt from FERPA’s disclosure requirements and may be shared with outside parties, including the Police Department

55 17. Remedies Under FERPA (1) No private cause of action for damages exist for violations of FERPA, Gonzaga Univ. v. Doe, 122 S. Ct (2002). (2) However, the U.S.D.O.E. can threaten to withhold Federal funding to district, for failure to comply with FERPA. (3) Claims for damages under Section 1983 still might be brought, however.

56 18. NY State Mental Hygiene Law
Under Sec of the NY State Mental Hygiene Law, there are further restrictions on the rights of individuals receiving medical records regarding individual with mental illness or development disabilities from redisclosing such records.

57 19. Are School Staff Required to Speak About the Children to Attorneys for Parents in a Custody Dispute? A. No. In fact, school staff should not be speaking to the parents’ attorney* without an authorization from the parents. Staff can, however, be subpoenaed to Court where they may be asked relevant questions by both attorneys * The rule may be different regarding the Law Guardian for a child.

58 20. Custody Issues Can a non-custodial parent make educational decisions for his/her child?

59 Custody Issues (Cont’d)
Generally no. Contrary to the right to inspect records, the right to make educational decisions is reserved for the custodial parent, unless there is a custody order expressly permitting joint-decision making authority or designating particular authority. See, Fuentes v. Bd. of Educ. of City of New York, 12 N.Y. 3d 309 [2009].

60 Custody Issues (Cont’d)
What are the rights of step-parents to access records under FERPA? Step-parents/significant others have rights under FERPA where s/he is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home.

61 Which laws make communication between a school social worker, psychologist, or guidance counselor “privileged”, such that the school social worker, psychologist, or guidance counselor can’t be required to disclose the content of their communication with a student?

62 Privilege A. Neither the courts nor the Commissioner of Education have recognized a legal “privilege” (akin to an attorney-client communication, doctor/patient, etc.) preventing a school psychologist, social worker, or guidance counselor from advising the building principal (for example), of such a conversation with the student.

63 Privilege (cont’d) In Appeal of BOE of the City School Dist. Of New York, Comm. Dec. #12673 (1992) , the Commissioner, in upholding testimony regarding communications between a school social worker in a 3020(a) proceeding (and rejecting the employee’s request to prohibit the testimony as privileged, pursuant to CPLR Section 4508), held that: “… (T)he school social worker is a paid employee of the school district who does not receive compensation from the student or their parents. No decision of the courts or the Commissioner of Education has yet granted privileged status to communications between a student and school personnel.”

64 Privilege (cont’d) Similarly, in Appeal of M.S., Comm. Dec. #15237 (2005), the Commissioner refused to bar testimony from a school guidance counselor that the student had admitted he was under the influence of alcohol while at a school football game, citing to the BOE of The City School District of N.Y. decision.

65 IV. Other OCR “Hot Button” Issues
OCR has a newly heightened emphasis1 on ensuring equal access to college and career readiness programs, including: “gifted and talented” programs; honors programs; and Advanced Placement programs 1 Synopsized from OCR’s N.Y. Office’s Sept. 26, 2013 conference for districts entitled “Identifying and Addressing Potential Civil Rights Issues Before You Review a Complaint.”

66 Other OCR “Hot Button” Issues (Cont’d)
Issue – OCR will be investigating district-wide enrollment to determine whether statistically – significant discrepancies exist between the number of minorities enrolled in a district and the number of minorities in gifted and talented programs and Advance Placement courses; and also, whether such discrepancies are attributable to district polices or practices (including those that appear neutral on their face, but are administered in such a way to have a disproportionate and unjustified impact on minority students).

67 Other OCR “Hot Button” Issues (Cont’d)
District can in anticipation of this: 1. Review entry criteria for clarity and equity; 2. Ensure that entry criteria are applied equally by staff; 3. Create multiple entry points for the programs at different levels;

68 Other OCR “Hot Button” Issues (Cont’d)
District can: 4. Check for potential bias in testing instruments. 5. Conduct outreach meetings and publicity targeted at students enrolled in free and reduced lunch programs and in languages most commonly spoken in the District.

69 V. DASA - The Issue 1. Bullying claims brought on behalf of students are rapidly becoming one of the most prevalent types of litigation against public school districts. These claims may be based upon the theory that the bullying was based upon a particular protected characteristic (e.g., race, disability, sex, sexual orientation), or the allegation that the student was “constructively expelled” from school and/or that the district denied the student’s “due process” rights by allowing bullying to continue. 69

70 2. Major Issues Schools Face:
1) How do legal decisions regarding bullying inform administrators about how to proceed? 2) How is bullying defined? 3) What administrative steps should be taken before and after a bullying claim is made?

71 3. How Is Bullying Defined?
New York Education Law defines (in “DASA”) “Harassment” and “bullying” as the creation of a hostile environment by conduct or by verbal threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student;

72 4. Definition of Cyberbullying
DASA rules on cyberbullying went into effect on July 1, 2013. New York Education Law defined “cyberbullying” to mean harassment or bullying as defined in subdivision seven of this section, including paragraphs (a), (b), (c) and (d) of such subdivision, where such harassment or bullying occurs through any form of electronic communication defined by NY EDUC §11 as harassment or bullying.

73 5. Legal Issues That Arise When The District Attempts To Address Bullying
What are some legal issues raised when a district attempts to discipline for bullying? Is it protected speech? (e.g. speech can be offensive but still being entitled to First Amendment protection) Is it harassment on the basis of a protected class (e.g. disability, sex, race, etc.)? Does it fall under the District’s Code of Conduct? Even if the conduct occurred “off-campus,” students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety of pupils within the educational system or adversely affect the education process.

74 6. Does A Bullying Claim Involve Protected Speech?
The First Amendment protection of free speech does not extend to certain types of speech. (e.g. fighting words, defamation, etc.) “Speech” that creates a foreseeable risk of material and substantial interference with school activities will lose First Amendment protection, allowing school districts to discipline students. Tinker v. DesMoines School District, 393 U.S. at 514. The Tinker Test This test does not require a disruption to actually occur, but instead allows school officials to discipline for any conduct that would foreseeably create a risk of substantial disruption.

75 7. Issues with Special Ed Students and Bullying
(i) Does bullying, by definition, involve: (a) Fights or confrontation between special education peers (i.e., where there is no “imbalance of power” between the two parties)?

76 Issues with Special Ed Students and Bullying (Cont’d)
(ii) Interactions between special education students and others may occur where the classified student provocative behavior may actually be a manifestation of their disability (e.g., students with problems recognizing social cues, problems with expressive or receptive language, or E.D. students).

77 Issues with Special Ed Students and Bullying (Cont’d)
(iii) When special education students are the accused bullies, how does the District discipline for something which is a manifestation of their disability? How do they change the student’s placement, given the pendency requirements of the IDEA?

78 Issues with Special Ed Students and Bullying (Cont’d)
(iv) What jurisdiction does the CSE have to address bullying complaints (e.g., disciplinary, environmental, or curricular changes to programs of non-classified students)? When, and to what extent, should school administrators become involved in the CSE?

79 Issues with Special Ed Students and Bullying (Cont’d)
(v) Obligation to notify parents they can file a complaint for harassment on the basis of Section 504 (or Title IX, or Title VI). (vi) Importance of availability and preservation of contemporaneous documentation by school officials, describing action taken in the wake of an allegation of bullying.

80 8. Peer Harassment/Bullying
In its August 20, 2013 “Dear Colleague” letter, OSERS urged district to “… exercise caution” in moving a bullied student with a disability to a more restrictive placement. “Dear Colleague Letter.” OSERS, 61 IDELR 263 (2013)

81 9. Harassment on the basis of disability – District liability under Section 504
Allegations that student with Aspergers was called “retard”, “crazy”, “creepy” and “freak” by other students were sufficient to state claim that harassment was referable to the student’s poor social skills; coupled with alleged non-responsiveness to complaints, this was sufficient to plead a claim for peer to peer disability harassment. Sutherlin v. Ind. School, Dist, #40 61 IDELR 69 (N.D.N.Y. 2013)

82 10. Dignity Act Coordinator (DAC)
DASA also requires that at least one staff member at every school be thoroughly trained to handle human relations in the areas of race, color, weight, national origin, ethic group, relation, religious practice, disability, sexual orientation, gender, and sex.

83 11. Is it discrimination? Q: What must a staff member do when a student comes to them alleging s/he has been a victim of discrimination? Make a report to the District’s Compliance Officer or another administrator Review the District’s sexual harassment policy and grievance procedure

84 12. DASA Reporting Effective July 1, 2013 DASA requires school employees who witness harassment, bullying, or discrimination or receive an oral or written report of harassment, bullying, or discrimination, to promptly orally notify the principal, superintendent or the principal or superintendent’s designee not later than one school day after seeing or learning about the event and to file a written report with the principal, superintendent or the principal or superintendent’s designee not later than two school days after the learning of the event. The school needs to show that they were not deliberately indifferent to complaints under DASA – reporting forms provide contemporaneous evidence that the district investigated and took appropriate corrective action, if it was necessary

85 VI. SECTION 504 Q. Does a medical diagnosis of an illness automatically mean a student can receive services under Section 504? A. No. The illness must cause a substantial limitation of either the student’s ability to learn, or another major life activity.

86 Section 504 (Cont’d) 2. Q. Are there any “impairments” (e.g., cancer, autism, diabetes) which automatically mean that a student has a disability, under Section 504? A. No. The impairment must substantially limit one or more major life activities, in order to be considered a disability, under Section 504.

87 Section 504 (Cont’d) 3. Q. If a student is eligible under both IDEA and Section 504, must the District develop both an IEP and a 504 plan? A. No. If the student is eligible under IDEA, they must have an IEP. See, also, Muller v. Committee on Special Education of the East Islip Union Free School District, 145 F. 3d 95 (2d. Cir. 1998). Under the 504 regulations, one way to meet Section 504’s requirement for FAPE is to implement an IEP.

88 Section 504 (Cont’d) 4. The Americans With Disabilities Amendments Act of On January 1, 2009, the Americans With Disabilities Amendments Act of 2008 (“ADAAA” or the “Amendments Act”) became effective. The ADAAA broadens the definition of disability under the Act and contains a conforming amendment to the Rehabilitation Act of 1973, effecting a similar change of disability under Section 504.

89 Section 504 (Cont’d) 5. How does the ADAAA affect the class of
Section 504 (Cont’d) 5. How does the ADAAA affect the class of students protected under 504? Section 504 applies to qualified students with disabilities attending schools which receive federal financial assistance who have been determined: 1) to have a physical or mental impairment that substantially limits one or more major life activities; or

90 Section 504 (Cont’d) 6. How does the ADAAA affect the class of
Section 504 (Cont’d) 6. How does the ADAAA affect the class of students protected under 504? Section 504 applies to qualified students with disabilities attending schools which receive federal financial assistance who have been determined: 2) to have a record of such an impairment; or 3) to be regarded as having an impairment.

91 Section 504 (Cont’d) 7. Under the ADAAA: 1) the “ameliorative effects” of mitigating measures (e.g., medication) must not be considered in determining whether a “substantial limitation” of a major life activity exists;

92 Section 504 (Cont’d) 8. Under the ADAAA: 2) the class of major life activities is expanded to include “…eating, sleeping, …standing, lifting, bending…reading, concentrating, thinking, and communication”

93 Section 504 (Cont’d) 9. 3) coverage now exists for impairments which are “episodic or in remission” – An impairment now may be covered under ADAAA, even if it is currently “episodic or in remission,” if it would “substantially limit a major life activity when active.”

94 Section 504 (Cont’d) 10. 4) coverage for individuals “regarded as” having a disability –Under the ADAAA, one is regarded as “having a disability” if they have experienced discrimination “…based on an actual or perceived physical impairment, whether or not the impairment limits or is perceived to limit a major life activity.” 74 Fed. Reg (2009). [emphasis supplied]

95 OCR’s January, 2013 “Dear Colleague” letter
11. 1) Schools may not operate an extracurricular program on the basis of generalizations or stereotypes (e.g. A coach may not withhold playing time from a student with a learning disability on the assumption the student would be unable to play successfully under time constraints and pressures of an actual game).

96 12. 2) While schools may require a level or skill or ability for participation in a competitive program, a school must afford qualified students with disabilities an equal opportunity to participate in an integrated manner to the maximum extent appropriate to the needs of the student. Determining whether a modification is required must be done on an individualized basis and the modification must be allowed unless it fundamentally alters the nature of the activity.

97 13. 3) For those students who cannot participate in an existing extracurricular activity , even with reasonable modifications, they should still have an equal opportunity to receive the benefits of extracurricular activities and athletics. In these circumstances, a district should consider offering opportunities that are separate or different to those offered to students without disabilities (e.g. wheelchair basketball).

98 14. Test Accommodations Decisions regarding test
accommodations can be authorized by: CSE (or CPSE); Section 504 team; School Principal – but only when general education students have incurred a short-term or long-term disability within 30 days of the state assessment, and sufficient time is not available for the development of an IEP or 504 plan.

99 Test Accommodations (Cont’d)
Students who have not recently incurred a disability, but are, instead still in the process of being evaluated for a disability, are not eligible for that accommodation upon the authorization of the building principal.

100 15. Test Accommodations – Student Refusal
For students who refuse test accommodations: School officials should explain the reasons for the accommodation; If “1” does not work, administer the test without the accommodations; document the incident, notify the parent; and consider the appropriateness of additional counseling, and a review of the IEP or 504 plan.

101 16. When do allergies rise to the level of a substantial limitation of a major life activity requiring a 504 plan? According to OCR, in determining whether a student with a peanut or tree nut allergy has a disability under Section 504, the school must consider whether the allergy would substantially limit the major life activities of breathing and respiratory function without considering the ameliorative effects of medication or other mitigating measures. Matter of Virginia Beach (VA) Public Schools, 59 IDELR 54 (OCR 2012)

102 17. Does a public school district have to provide 504 services to students enrolled in private schools in the district? In D.L. v. Baltimore City Bd. of School Commissioners, 706 F.3d 256 [4th Cir. 2013], a federal appellate court recently clarified that neither Section 504 nor its implementing regulations require that public schools provide access to eligible individuals who opt out of the program by enrolling in private schools.

103 18. Manifestation Determination 504 STUDENTS
Students who are receiving services under Section 504 must also receive a Manifestation Determination. The 504 team should conduct the determination in the same procedural manner that the CSE team conducts determinations for classified students.

104 19. Section 504 / Drug Use HOWEVER, students engaging in the use or possession of drugs do not receive the benefit of 504’s disciplinary protections, and may be disciplined without a manifestation determination. See, Letter to Zirkel 22 IDELR 667, See, also, Matter of Appoquinimink (De) School Dist., 40 IDELR 157.

105 VII. Gang Violence 1. a) One way to address gang violence can be through the school dress code b) Probably not legally sufficient to have a general ban on “gang-related items, colors or symbols” c) Must specifically identify prohibited items (e.g. blue bandanas, red shoelaces) that the administration can demonstrate have been specifically identified to gang activities. d) Must have knowledge that these items are specifically related to gangs in the area Usually through cooperation with local law enforcement See, Chalifoux v. New Caney Ind. Sch. Dist., 976 F.Supp. 659 (1997)

106 Gang Violence (Cont’d)
2. Grzywna v. Schenectady Central Sch. Dist., 489 F.Supp.2d 139 (2006): District Court denies school district’s motion to dismiss complaint alleging district’s policy prohibiting student from wearing a red, white and blue beaded necklace is a violation of student’s right to free expression under the First Amendment. Student alleged she was wearing necklace to show support for soldiers in Iraq; District policy prohibited the wearing of gang-related items. Student has the right to engage in non-disruptive, non-violent, silent speech to express viewpoints disapproving of war.

107 Gang Violence (Cont’d)
3. Can you punish students for “gang-related” statements? In Appeal of L.L., Comm. Dec. No. 15,835 (Oct. 2008), a student was charged with “prohibited gang affiliation” under the Code of Conduct, because he had asked another student if that student had made a derogatory comment about a certain gang (“MS-13”)

108 Gang Violence (Cont’d)
4. The Commissioner overturned the discipline based (among other things) on his conclusion that “a mere reference to MS-13, without more, does not constitute an activity, affiliation, and/or communication in connection with a gang….” The Commissioner does say that “…gang affiliation and related conduct pose serious safety concerns for school districts….”

109 5. Gang Violence/Student Discipline
What role do “zero tolerance” policies play in addressing gang violence? It is generally not legal (i.e., it does not comport with due process) to have a predetermined penalty for a predetermined offense Can bullying be an “aggravating factor” in a suspension? Can gang activity be an “aggravating factor” in a suspension?

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