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