Disabled Students and Extracurriculars

Special Education and Extracurriculars Karen Haase & Bobby Truhe Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law @KarenHaase @btruhe

Laws in Effect • • • •

IDEA Section 504 ADA Regulations

IDEA • IEP must include ‾ Statement of services and aids ‾ Program modifications ‾ With specific reference to participation in extracurricular and nonacademic activities ‾ NOT required to be tied to FAPE

IDEA • IEP team must ‾ Consider supplementary aids, support, modifications ‾ Afford children with disabilities an equal opportunity to participate

IDEA • IEP team must ‾ “[Ensure] that each child with a disability participates with nondisabled children . . . to the maximum extent appropriate to the needs of the child.”

Section 504 • Students with disabilities shall receive “equal opportunity” to participate in nonacademic and extracurricular activities • May include: counseling, athletics, transportation, health services, clubs, and employment services

ADA • May not discriminate on the basis of disability • Must provide reasonable accommodations • Do not need to alter qualification requirements or essential functions of the activities

Providing Notice • OCR has found that districts cannot place burden on student to inquire about activities • District must consider the range of impairments when providing notice . . .

Caselaw

Polk County Schools (FL) • 9th grade students with Fragile X syndrome, autism and fetal alcohol syndrome • Parents complained that the district discriminated under special ed. laws for failure to notice of extracurricular activities

Polk County Schools (FL) • District provided notice by: ‾ Marquee outside building ‾ Website ‾ Scroller system on classroom TV ‾ Automated phone system ‾ Notices sent home by teachers

Polk County Schools (FL) • OCR: ‾ Students had access but could not understand information on their own ‾ Parents must be notified on a “consistent basis”

Athletics

Maryville City (TN) • Baseball tryouts ‾ Student has Tourette's ‾ Coach evaluated on speed, balance, coordination, catching, hitting, etc. ‾ Two openings on team, student finished 8/14

Maryville City (TN) • Parents argued that coach knew of behavioral issues and discriminated against student • OCR ‾ Coach used clear metrics ‾ Student had “equal opportunity” ‾ No evidence of discrimination other than allegations

McDowell Schools (WV) • Cheerleading tryouts ‾ Student had growth hormone deficiency ‾ 24 tried out for 12 spots ‾ 5 impartial judges and an extensive rubric ‾ Student scored lowest of 24

McDowell Schools (WV) • OCR found no discrimination ‾ Students must be given reasonable accommodations, but must meet performance standards ‾ Grading was tied to performance standards (i.e. essential functions)

Northshore (WA) • • • •

Cheerleader fell below 2.8 GPA School policy deemed her ineligible Parents claimed discrimination OCR focused on 2 issues ‾ Was GPA policy a necessary function for cheerleading? ‾ Would modifying the policy “fundamentally alter” program?

Northshore (WA) OCR: • Not necessity: 2.8 Minimum was arbitrary, higher than athletic requirement • Fund. Alter: 2 other district H.S.’s considered exceptions, and student was in regular ed. classroom; disab. affected grades

Mt. Diablo (CA) OCR: “Applying an academic standard to all students without providing for appropriate consideration of whether the standard may discriminate against students with disabilities could constitute discrimination on the basis of disability.�

Lambert v. WV Bd. of Ed. • Deaf student requested an interpreter for basketball ‾ Parent asked Principal and Coach for interpreter ‾ School argued that student needed to ask SPED director ‾ OCR: parent can ask “anyone familiar with” student’s needs

Field Trips

St. John’s County (FL) • Student with learning disability excluded from field trip ‾ Student had been behaving badly and disobeying ‾ Parents argued discrimination ‾ OCR: school kept other, nonSPED kids out on behavior grounds; no discrimination

Oxford Hills (ME) Supervision of diabetic student on field trips  Four field trips  School and parent put 504 plan in place re supervision on trips  Parent alleged school required her to attend in order for daughter to participate

Oxford Hills (ME) OCR: • Trip 1: Parent offered; School could not find replacement in time when she backed out • Trips 2-4: Parent chose to attend; school did not condition student’s participation on parent attending • School did not discriminate

Nebraska Case Student on IEP for autism and behavioral issues • Field trip scheduled for May • Parent offered to attend with student and would bring sister • Within days of trip, student threatened to assault and even kill other students

Nebraska Case • Student asked if a “knife or a gun” would be better • Student had behavior problems when overstimulated by surroundings • Shortly before the trip, parent told district she could not attend

Nebraska Case • District noted behavior problems and decided not to allow student to attend • Parent became upset with school and made a complaint to OCR • OCR investigated and interviewed student, parent, and school officials

Nebraska Case OCR: • Asked school to make field trip determinations in IEP • Asked school to have separate policy re non-educational trips • School was worried about requirement of involving IEP team, in case behavior changed

School Clubs and Org.’s

Humble (TX) • National Honor Society required: ‾ 4.0 GPA ‾ Level or above-level classes ‾ Service, leadership, etc.

• Student had 5 modified curriculum classes, not selected • OCR: school provided notice to all students and parents, no discrim.

Perry (OH) • National Honor Society required: ‾ 95% attendance ‾ At least 2 extracurriculars • Student missed more than 5% but absences were excused • Student listed Spanish club as one of her activities, but the club leader did not know student

Perry (OH) OCR: • Absence policy was waived if doctors’ notes were provided for all absences over 5% • Participation in extracurriculars was fair qualification and evenly enforced • No discrimination

HI Dept. of Ed. Selection for Honor Band: • Student required an aide to participate in band • Student tried out and was not selected for honor band • Director used skill, instrument needs, etc. to select students • OCR: no discrimination

Winooski (VT)  Student’s IEP required 1:1 aide for art and assistance during lunch  Student desired to participate in student council and skiing club  IEP did not require 1:1 for those  OCR: no violation b/c not in IEP, but district must consider that type of aide in IEP meeting

Special Education and Extracurriculars Karen Haase & Bobby Truhe Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com btruhe@hslegalfirm.com H & S School Law @KarenHaase @btruhe