Join Shipman & Goodwin school law attorneys for a timely discussion of hot topics and legal developments in special education and Section 504/ADA. Presenters will
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Supreme Court Rules That Parents Need Not Exhaust IDEA Due Process Procedures for Non-FAPE Disability Discrimination Claims
On February 22, 2017, the Supreme Court of the United States issued its opinion in Fry v. Napoleon Community Schools, No. 15-487 (2017), which
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Gwen Zittoun Quoted in Special Ed Connection Article “Review noteworthy scenarios from OCR’s latest guide on Section 504”
Gwen Zittoun discusses useful guidance included in the latest guide on Section 504 released by the U.S. Department of Education’s Office for Civil Rights (OCR). This article originally appeared in SpecialEdConnection®.
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Review noteworthy scenarios from OCR’s latest guide on Section 504
For the most part, OCR’s Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, published Dec. 28, serves as a reminder to districts of their obligations to students with disabilities under Section 504.
What makes it stand out, however, is that in it OCR breaks down the basic steps of Section 504, said Gwen J. Zittoun, school attorney with Shipman & Goodwin LLP in Hartford, Conn.
“This is almost like the outline of a procedures manual,” Zittoun said. “We haven’t received anything like that from OCR in the past.”
The agency tends to favor FAQs, which can be helpful for fact-specific issues but aren’t as useful for training staff on the overall aspects of the law, Zittoun said.
In this guide, OCR explains at length the meaning of disability under Section 504 and the process for determining if a student is eligible. The guide includes comparisons between Section 504, Title II of the ADA, and the IDEA as well as important reminders, including:
- A student with average or above-average grades can still have a disability under Section 504.
- In determining eligibility, teams must consider other major life activities besides learning.
- A student may be protected from discrimination even if she doesn’t need any services or accommodations through a 504 plan.
- Schools cannot require a parent of a child with a disability to attend a field trip to care for the student.
- Retaliation based on a parent’s advocacy for their child with disabilities is prohibited under Section 504.
To illustrate these and other points, OCR proffers 11 scenarios. Consider using these as case examples for your next staff training session. Review a sample of three scenarios districts face, edited for length and clarity, followed by expert analysis of each:
Scenario: A fourth-grade teacher notices that a student has trouble concentrating during class and takes significantly longer than most students to complete in-class assignments. The teacher doesn’t think the student needs special education services because she is earning B’s and C’s. What should the teacher do?
OCR says: “The teacher needs to inform the proper individuals in the school system that the student needs to be evaluated.”
This has been one of OCR’s frequent messages in the past several years, Zittoun said. A student’s average or even above-average grades do not disqualify him from Section 504.
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OCR Releases New Section 504 Resource Guide
On December 28, 2016, the Office for Civil Rights (“OCR”) within the U.S. Department of Education released several guidance documents, including a Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (“Resource Guide to Section 504”).
The Resource Guide to Section 504 is a comprehensive overview of the obligations of public schools in complying with Section 504 of the Rehabilitation Act of 1973. From time to time, OCR issues “Dear Colleague Letters” that provide policy interpretations on various subjects but, until recently, OCR failed to provide any comprehensive resources on the Section 504 process and school district responsibilities. In July of 2016, OCR issued a Resource Guide regarding Students with ADHD that provided an overview of the Section 504 process using ADHD as an example. We provided earlier coverage of OCR’s ADHD guidance here. The new Resource Guide to Section 504 builds upon that guidance and provides a general overview of a variety of topics, including:
- The meaning of disability under Section 504;
- The provision of FAPE under Section 504, including the evaluation and reevaluation process and placement decisions;
- Athletics and extracurricular activities;
- Physical accessibility;
- Unjustified different treatment;
- Bullying and harassment, including duties to investigate and to respond promptly;
- Dispute systems for FAPE and non-FAPE related matters, including distinct due process and grievance procedures;
- Retaliation; and
- Differences and overlaps with Title II of the Americans with Disabilities Act and the Individuals with Disabilities Education Act.
The guidance in the Resource Guide to Section 504 generally synthesizes existing OCR guidance from previous Dear Colleague Letters and Question and Answer guidance documents and also provides several scenarios to illustrate particular points.
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OCR Issues Dear Colleague Letter: Restraint and Seclusion of Students With Disabilities
On December 28, 2016, the Department of Education, Office for Civil Rights (OCR), issued four guidance documents concerning students with disabilities. Along with two documents concerning students with disabilities in public charter schools (FAQs about Charter Schools and IDEA and DCL Rights of Children With Disabilities in Charter Schools), and “Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools”, OCR issued “Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities” (DCL) and a related Fact Sheet. The DCL, which includes a series of questions and answers and examples, addresses OCR’s interpretation of the intersection between the use of restraint and seclusion in the public schools and disability discrimination under Section 504 of the Rehabilitation Act (Section 504).[1] This DCL, in addition to the statutes and regulations under Connecticut law, provide an important framework for the legally permissible use of restraint and seclusion in schools in Connecticut.
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New Title II and Title III ADA Regulations Take Effect October 11, 2016
On October 11, 2016, new regulations clarifying the definition of the term “disability” under Titles II and III of the Americans with Disabilities Act (ADA) will take effect. Title II prohibits disability discrimination by state and local governments (including public schools and state colleges and universities) and Title III prohibits disability discrimination by places of public accommodations and in commercial facilities (including independent schools and private colleges and universities). The new Title II and Title III regulations implement the Americans with Disabilities Amendment Act of 2008 and are consistent with the regulations the Equal Employment Opportunity Commission adopted under Title I of the ADA, which governs employment discrimination on the basis of disability.
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Second Circuit Holds IDEA Eligibility Does Not Automatically Result in Section 504/ADA Eligibility; Practical Implications Are Not That Simple
On September 16, 2016, the U.S. Court of Appeals for the Second Circuit held in a precedential decision that, as a technical legal matter, a
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Office for Civil Rights Issues New Dear Colleague Letter Regarding ADHD
The Office for Civil Rights (OCR) issued another Dear Colleague Letter (DCL) on July 26, 2016 regarding the obligation of school districts to students with
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Supreme Court Agrees to Hear Special Education Case
On June 28, the Supreme Court of the United States issued an order accepting an appeal out of Michigan in the case Fry v. Napoleon
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Susan Freedman and Peter Maher to Discuss Section 504, Bullying and Cyberbullying at the C.E.S. New Administrator Induction Program
On October 2, 2015, Susan Freedman and Peter Maher will be speaking to new school administrators as part of Cooperative Educational Services’ (C.E.S.) New Administrator
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