Kelley Baker kbaker@hslegalfirm.com
Karen Haase khaase@hslegalfirm.com @KarenHaase
Steve Williams
Bobby Truhe
swilliams@hslegalfirm.com @SteveisEsteban
btruhe@hslegalfirm.com @btruhe
Start Planning Now on How to Include Students with Disabilities in Holiday Programs Now that students and staff are back from the long Thanksgiving weekend, schools typically begin their holiday program schedules. As schools plan these events, two recent cases from the Office for Civil Rights (OCR) should serve as a reminder to staff and administrators to be sure that students who have disabilities have the opportunity to participate. In Southfield (MI) Public Schools, 112 LRP 37572 (OCR 05/11/12), the OCR investigated an allegation that a group of students with moderate cognitive disabilities were discriminatorily excluded from a holiday program. The OCR concluded that the school had not discriminated against the students. Section 504 requires schools to provide students who have disabilities with education services that are equal to those of students who do not have disabilities. The regulations further provide that a district may treat students with disabilities differently unless the district has legitimate, nondiscriminatory, non-pretextual reasons. 34 CFR 104.4 (b). Southfield Public Schools demonstrated that the students were not excluded from the program by showing the OCR a school calendar that listed the time of the performance and the rehearsals, a flier to parents that advertised the concert, and a video that showed one of the students participating in the concert. In Scott County (KS) U.S.D. #466, 106 LRP 57253 (OCR 07/21/2006), the OCR found that the school had not discriminated against a student with disabilities when he was excluded from the holiday program. A month prior to the program, the student had a behavior incident which included attacking a paraprofessional physically. The IEP team met 5 days later and concluded that a more restrictive placement was necessary and the student’s mother agreed to this placement. The more restrictive placement did not include music, art, or physical education classes until the student earned them back through a behavior point system. As the student was not in music class and could not prepare for the holiday concert, the OCR found that the school had not discriminated against him when he did not participate in the holiday program. Schools should consider the following guidelines to ensure that students with disabilities are included: maintain a policy on participation in school holiday programs for special education students; consider the needs of disabled students when planning the holiday program; make sure that parents of students with disabilities receive notice; and document student participation in the programs. If you have any questions or concerns regarding the special education students or any other issue, contact your school attorney or Kelley, Karen, Steve, or Bobby. I:\3\7613\E-mail Updates\131 Holiday Concerts.docx