Legal Implications of Failing to Provide for Students with Special Needs

Reading and Supplemental Materials Required Reading Material LaMorte, M. (2012). School Law: Cases and Concepts. 10th edition. Pearson Education: London, England.

Chapter 6

Brundin, J. (2020, October 21). Lawsuit Says Boulder Valley School District Is Failing to Educate Its Special Needs Students. Retrieved May 9, 2021 from

https://www.cpr.org/2020/10/21/lawsuit-says-boulder-valley-school-district-is-failing-to-educate-it s-special-needs-students/

Links to an external site.

Recommended (Optional) Learning Materials

Kamentez, A. (2020, July 23). Families Of Children With Special Needs Are Suing In Several States. Here's Why. Retrieved May 9, 2021 from

https://www.npr.org/2020/07/23/893450709/families-of-children-with-special-needs-are-s uing-in-several-states-heres-why

Links to an external site.

US Department of Education Official IDEA Website

Links to an external site.

Section 504 Summary & FAQs

https://www2.ed.gov/about/offices/list/ocr/504faq.html

LaMorte, M. W. (2011). School Law: Cases and Concepts (10th ed.). Pearson Education (US). https://bookshelf.vitalsource.com/books/9780133000603

As the United States Congress recognized in the Individuals with Disabilities Education Act (IDEA), disabilities are a natural part of the human experience and should in no way diminish the right of individuals to participate in or contribute to society. With appropriate educational services, children with disabilities, like all other children, can be prepared to lead productive, independent, adult lives to the maximum extent possible. But prior to the passage of laws protecting children with disabilities, many of these children were excluded from public schools or were not receiving appropriate educational services. The prevailing educational philosophy held that children with disabilities that prevented them from conforming to ordinary cognitive, physical, or hygiene standards did not belong in regular public schools. The burden of educating these children remained primarily with their families, who often lacked sufficient resources to provide appropriate educational services. Educational services that were available to these children were often provided in segregated facilities, preventing these children from interacting with their nondisabled peers. Congress found that before the enactment of the landmark Education for All Handicapped Children Act of 1975 (Public Law 94-142), a million children with disabilities were entirely excluded from public schools, and more than half of the children with disabilities in the United States were not receiving appropriate educational services.

Following the United States Supreme Court’s mandate to racially desegregate schools in Brown v. Board of Education, advocates for individuals with disabilities championed desegregated education for children with disabilities. Based on legal theories rooted in Brown, dozens of cases were filed nationwide alleging that children with disabilities were being excluded from public schools and denied equal protection and due process rights. Two of these cases, Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972), resulted in landmark decisions recognizing educational rights for children with disabilities. In PARC, a federal district court held that intellectually disabled students ages six through twenty-one should be provided with access to a free public education, and that children ________________ *This chapter was written by John Dayton, J.D., Ed.D., a professor in the University of Georgia College of Education, and Co-Director of the Education Law Consortium.

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with disabilities should be placed in regular classrooms when possible or in special classes when necessary. In Mills, another federal district court extended this doctrine to all school-age children with disabilities, holding that they must be provided with a free and adequate public education.

Legislation protecting the rights of individuals with disabilities was also passed by the United States Congress. Some of the earliest federal legislation included the Elementary and Secondary Education Act of 1965, and Title VI, which was a 1966 amendment to that Act. In 1970, Title VI was repealed and replaced by the Education of the Handicapped Act. This Act created a Bureau of Education for the Handicapped and brought increased national attention to the concerns of students with disabilities. This early legislation did not provide for “mainstreaming” or a “free appropriate public education,” but it established the groundwork for future legislation concerning these issues. In 1973 Congress passed Section 504 of the Rehabilitation Act, prohibiting discrimination against handicapped persons in programs receiving federal funds. In 1975 Congress passed Public Law 94-142, the Education for All Handicapped Children Act, providing significant new substantive legal rights and procedural protections for handicapped children. This Act was renamed the Individuals with Disabilities Education Act (IDEA) in 1990, with the addition of some important substantive changes such as provisions for “transition services” and changes in terminology, including a change from “handicapped children” to “children with disabilities.” In that same year, Congress also passed the Americans with Disabilities Act (ADA). The ADA extended antidiscrimination protections similar to Section 504 protections in public institutions to many private-sector areas, including employment, public accommodations, transportation, and telecommunications. These three laws, Section 504, the IDEA, and the ADA, provide the primary legal protections available for individuals with disabilities.

Among these three laws, the IDEA has the most significant impact on public schools. Legislation, regulations, and judicial opinions concerning the IDEA form a complex system of legal rights and responsibilities, and schools are frequently involved in litigation concerning the IDEA. Accordingly, this chapter focuses greater attention on the IDEA, including significant provisions from the most current legislative amendments and administrative regulations. But because the laws concerning individuals with disabilities continue to develop rapidly, educators responsible for compliance with the IDEA, Section 504, and the ADA should closely monitor new legislation, regulations, and judicial decisions concerning these laws. Congress reauthorized the IDEA in 2004, new IDEA regulations were issued in 2006, and reauthorization was still pending when this chapter was written.

I. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

The purpose of the IDEA is to ensure that all children with disabilities are provided with a “free appropriate public education” (FAPE) that emphasizes special education and related services designed to meet their unique needs and to prepare them for employment and independent living. The IDEA is also intended to ensure that the rights of children with disabilities are protected and to assist states in providing appropriate services.

A. Eligibility To be eligible for IDEA services, a child must be declared a “child with a disability” as defined in the IDEA, requiring a two-part test. First, the child’s disability must fit within one of the categories of eligibility. Under section 1401 of the IDEA these categories include:

[M]ental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic

255 impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities. 20 U.S.C. § 1401 (2004).

Second, the child must need special education and related services because of the disability. The IDEA defines special education as special instruction designed to meet the unique needs of a child with a disability. Related services are services required to assist a child with a disability to benefit from special education services. The IDEA also allows states to classify children ages three through nine that are “experiencing developmental delays” and in need of special education and related services as “children with disabilities.”

Not all children with physical or mental impairments will satisfy the IDEA’s two-part eligibility test, and these children will not be eligible for IDEA services. Some children will not fit within an IDEA eligible category. For example, there is no specific category for children with Attention Deficit Disorder (ADD), diabetes, cancer, or many other chronic health problems. Further, these children would only be eligible as “other health impaired” if their illnesses sufficiently limit their strength, vitality, or alertness and adversely affect their educational performance, requiring special education and related services. Some children may fit in an IDEA eligible category, but not need special education and related services. For example, although “orthopedic impairment” is a proper category for IDEA eligibility, some orthopedically impaired children do not need special education and related services. These children may qualify under Section 504 and may require reasonable accommodations in facilities and transportation, but they are not eligible for IDEA services if they do not need special education and related services because of their disability.

B. Identification and Evaluation of Students The IDEA creates an affirmative duty for states to identify children with disabilities through the “child find” provisions, which mandate that “All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified.” 20 U.S.C. § 1412 (2004). Some of these children are identified through mass screening tests, including vision tests, hearing tests, and other basic tests administered to all schoolchildren. Also, parents, school personnel, or other persons that suspect a child needs IDEA services may refer the child for an evaluation to determine whether the child is eligible for these services. But before any individual evaluations for IDEA eligibility may be conducted, schools must obtain parental consent for the evaluation.

If parents refuse consent, school officials may use counseling or mediation to encourage parental cooperation. In more difficult cases, school officials may initiate due process proceedings to obtain permission for an evaluation from a hearing officer. Parental refusal does not absolve the school district of its duty to provide a FAPE for children with disabilities. In cases where parents refuse consent and the school suspects the child may be a child with a disability, a hearing officer’s determination concerning whether there is an adequate basis for suspecting a disability may help ensure that children with disabilities receive needed services and help to protect the school from future liability for failure to provide the student with a FAPE.

According to the IDEA, an evaluation for eligibility should include a variety of assessment tools and strategies, using technically sound instruments to assess the role of physical, cognitive, behavioral, and developmental factors in the child’s disability. To avoid inaccurate conclusions, no single procedure should determine whether a child has a disability. For example, children should not be improperly labeled as intellectually disabled based on a single test result or because of vision, hearing, or language problems in the testing process. Tests should be validated

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for the intended purpose, administered by qualified personnel, not racially or culturally discriminatory, and administered in the child’s native language if feasible. Based on all relevant evaluation data, including information from parents and classroom assessments, a determination is made concerning whether the child has an IDEA eligible disability and whether the child needs special education and related services.

C. Substantive Educational Rights Children eligible for IDEA services have a right to a “free appropriate public education” (FAPE). According to the IDEA, the right to a FAPE includes special education and related services that are free and without cost to parents or students and provided through an appropriate educational program that is under public supervision and direction and in conformity with the child’s individualized education program (IEP). Although the meanings of the terms “free,” “public,” and “education” are relatively clear, “appropriate” is a highly subjective term. Further, the IDEA does not define “appropriate.” Because the provision of a FAPE is essential to compliance with the IDEA, it is not surprising that the first United States Supreme Court case to address this law concerned defining the parameters of “appropriate” under the Act. It seemed to many observers that the Act obligated schools to provide, on demand and regardless of cost, optimal education services to meet any demonstrated educational need. Then, in 1982, the United States Supreme Court delivered a six-to-three decision in Rowley that addressed the limitations of the Act’s substantive guarantees.

BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT v. ROWLEY

Supreme Court of the United States, 1982 458 U.S. 176

JUSTICE REHNQUIST delivered the opinion of the court. This case represents a question of statutory interpretation. Petitioners contend that the Court of

Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals.

The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. § 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress’ perception that a majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” * * *

* * * In order to qualify for federal assistance under the Act, a State must demonstrate that it “has in

effect a policy that assures all handicapped children the right to a free appropriate public education.” * * * That policy must be reflected in a state plan submitted to and approved by the Secretary of Education * * * which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. * * * States receiving money under the Act must provide education to the handicapped by priority, first “to handicapped children who are not receiving an education” and second “to handicapped children . . . with the most severe handicaps who are

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receiving an inadequate education,” * * * and “to the maximum extent appropriate” must educate handicapped children “with children who are not handicapped.” * * * The Act broadly defines “handicapped children” to include “mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children. . . . [and] children with specific learning disabilities.” * * *

* * * Thus, although the Act leaves to the States the primary responsibility for developing and

executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, * * * and by the provision for judicial review. At present, all States except New Mexico receive federal funds under the portions of the Act at issue today. * * *

This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing and is an excellent lipreader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supple-mental services would be necessary to her education. Several members of the school adminis-tration prepared for Amy’s arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal’s office to facilitate communication with her parents who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy’s kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district’s Committee on the Handicapped, which had received expert evidence from Amy’s parents on the importance of a sign-language interpreter, received testimony from Amy’s teacher and other persons familiar with her academic and social progress, and visited a class for the deaf.

When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators’ determination that an interpreter was not necessary because “Amy was achieving educationally, academically, and socially” without such assistance. * * *

* * * The District Court found that Amy “is a remarkably well-adjusted child” who interacts and

communicates well with her classmates and has “developed an extraordinary rapport” with her teachers * * * It also found that “she performs better than the average child in her class and is advancing easily from grade to grade,” * * * but “that she understands consider-

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ably less of what goes on in class than she could if she were not deaf” and thus “is not learning as much, or performing as well academically, as she would without her handicap.” * * * This disparity between Amy’s achievement and her potential led the court to decide that she was not receiving a “free appropriate public education,” which the court defined as “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” * * * According to the District Court, such a standard requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or “shortfall” be compared to the shortfall experienced by non-handicapped children. * * * District Court’s definition arose from its assumption that the responsibility for “giv[ing] content to the requirement of an ‘appropriate education’” had “been left entirely to the [federal] courts and the hearing officers.” * * *

* * * This is the first case in which this Court has been called upon to interpret any provision of the

Act. * * * * * *

According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate public education” as defined by the Act.

Other portions of the statute also shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were “excluded entirely from the public school system” and more than half were receiving an inappropriate education. * * * In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an “inadequate education.” * * * When these express statutory findings and priorities are read together with the Act’s extensive procedural requirements and its definition of “free appropriate public education,” the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child.

Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts—that States maximize the potential of handicapped children “commensurate with the opportunity provided to other children.” * * * That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of “free appropriate public education” to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. * * *

* * * The educational opportunities provided by our public school systems undoubtedly differ from

student to student, depending upon a myriad of factors that might affect a particular

259 student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring

impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of “free appropriate public education”; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go. Thus to speak in terms of “equal” services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is “free appropriate public education,” a phrase which is too complex to be captured by the word “equal” whether one is speaking of opportunities or services.

* * * The District Court and the Court of Appeals thus erred when they held that the Act requires New

York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal may be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.

* * * The determination of when handicapped children are receiving sufficient educational benefits to

satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. When that “mainstreaming” preference of the Act has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been “educated” at least to the grade level they have completed, and access to an “education” for handicapped children is precisely what Congress sought to provide in the Act. When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a “free appropriate public education,” we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with

260 the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

* * * Applying these principles to the facts of this case, we conclude that the Court of Appeals erred in

affirming the decision of the District Court. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the findings of neither court would support a conclusion that Amy’s educational program failed to comply with substantive requirements of the Act. On the contrary, the District Court found that the “evidence firmly establishes that Amy is receiving an ‘adequate’ education, since she performs better than the average child in her class and is advancing easily from grade to grade.” * * * In light of this finding, and of the fact that Amy was receiving personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered. Notes and Questions

Because the term “appropriate” was not defined in the statute, a broad range of interpretations was possible concerning the Act’s substantive guarantees of an “appropriate” education. The Court could have found that Congress intended schools to maximize the potential of each handicapped child or to eliminate the effects of the handicap as much as possible. In applying a less stringent standard, the Court held that schools need only provide sufficient services to “permit the child to benefit educationally.” Dissenting Justices in Rowley criticized the majority’s decision by stating: “It would apparently satisfy the Court’s standard of ‘access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child’ for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service.” Is this a fair criticism of the Court’s decision in Rowley? What would happen to IDEA costs if the Court had determined that the IDEA required schools to maximize the potential of each disabled child or eliminate the effects of the disability as much as possible?

Courts have also addressed the issue of whether a child with disabilities is eligible for special education if no benefit can be shown from that education. In a case involving a child suffering from severe spasticity, cerebral palsy, brain damage, joint contractures, cortical blindness, not being ambulatory, and being a quadriplegic, the court held that such a child was a “handicapped child” within the meaning of the Act. The court concluded that the Act did not require a demonstration of benefitting from special education for a child to be eligible for that education. See Timothy v. Rochester School District, 875 F.2d 954 (1st Cir. 1989), cert. denied, 493 U.S. 983 (1989).

In a case concerning whether schools could be required to provide educational services when public schools are not generally in session, the Court of Appeals for the Eleventh Circuit held that the Georgia policy of refusing to provide more than 180 days of schooling to children with disabilities violated P.L. 94-142 and Section 504 of the Rehabilitation Act. The court concluded that the law requires an “appropriate education” suited to the individual needs of the students, and for some students the 180-day limit was not sufficient to provide a free appropriate public education. See Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565

261 (11th Cir. 1983). The general test for determining when extended school year services are required is an assessment of whether the child will experience a significant regression in the absence of services and whether sufficient educational recoupment will occur in a reasonable time when services are resumed. Based on the United States Supreme Court’s decision in Rowley, that schools are not required to maximize the potential of each child with a disability, extended school year services are not required

merely because a child may benefit from these services. The Court of Appeals for the Sixth Circuit held that extended school year services were not required merely because a child with a disability would benefit more from a twelve-month program than a nine-month program. See Cordrey v. Euckert, 917 F.2d 1460 (6th Cir. 1990).

D. Individualized Education Programs The “individualized education program” (IEP) is the basic plan for providing special education and related services. The IDEA describes an IEP as a written statement for each child with a disability that is developed, reviewed, and revised in accordance with IDEA requirements. The IEP is designed by an IEP team. The IEP team’s membership varies, but must generally include the child’s parents, a representative of the educational agency, a special education teacher, a regular education teacher when the child is or may be participating in regular education, other persons having special knowledge about the child, and, when appropriate, the child with the disability. There must also be someone on the IEP team capable of determining the instructional implications of evaluation results.

The IEP drafted by the IEP team includes statements concerning the child’s present levels of academic achievement and functional performance, measurable goals, what special education and related services are to be provided, and an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular classroom. The IEP is developed based on considerations of the strengths of the child, the parents’ concerns, and the results of evaluations. An IEP should also address any serious behavior problems. The IDEA states that the IEP team must “in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” 20 U.S.C. § 1414 (2004). The child’s IEP is reviewed periodically, but not less than annually, to determine whether annual goals are being achieved.

E. Appropriate Placements In developing an IEP, a decision must be made concerning an appropriate placement for the child. According to Section 1412 of the IDEA, children with disabilities must be placed in the “least restrictive environment” (LRE) appropriate for the child. To comply with LRE requirements, the IDEA mandates:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. § 1412 (2004).

In accordance with the IDEA, placement decisions should be based on information from a variety of sources; these sources should be documented and carefully considered, and placement decisions should conform to LRE requirements. The IDEA mandates parental participation in placement decisions, but no single factor, including parental preferences, should be determinative

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in a placement decision. Children should be placed in the LRE, preferring regular classroom placements and education with nonhandicapped students to the maximum extent appropriate. Further, unless the IEP requires other arrangements to provide a FAPE, children should be placed in the schools they would attend if nondisabled, or as close as possible to their homes.

However, the IDEA does not require “full inclusion” of all children in the regular classroom. The term “full inclusion” does not appear anywhere in the IDEA, and universal “full inclusion” of all children with disabilities would violate the mandates of the IDEA. The IDEA prohibits any “one-size-fits-all” approach to placements and instead requires an individualized placement decision for each child with a disability. Further, Section 1401 of the IDEA defines “special education” as “instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings,” and the IDEA requires schools to offer a “continuum of alternative placements” in recognition that some children cannot receive a FAPE in the regular classroom.

Although children with disabilities must be educated in the LRE and in regular classrooms with nondisabled children to the maximum extent appropriate, in order to provide a FAPE for some children, placement in more restrictive settings may be necessary. Placement in more restrictive settings is appropriate when education in regular classes cannot be achieved satisfactorily, even with the use of supplementary aids and services. Further, more restrictive placements are appropriate when a less-restrictive placement threatens the safety of the disabled child or other students, or when a disabled child is so disruptive in a regular classroom that the education of other students is significantly impaired. As the Court of Appeals for the Ninth Circuit recognized in Clyde K. v. Puyallup School District, 35 F.3d 1396 (9th Cir. 1994), “[w]hile school officials have a statutory duty to ensure that disabled students receive an appropriate education, they are not required to sit on their hands when a disabled student’s behavioral problems prevent both him and those around him from learning.” Further, the 2006 IDEA regulations mandate that in making decisions about the child’s education plan, the IEP team must consider cases where a child’s “behavior impedes the child’s learning or that of others” and “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” 34 C.F.R. § 300.324 (2006).

Children with disabilities are generally placed in public schools, but some children may be placed in private schools by school officials or their parents. Through the IEP process, a school district may place a child with disabilities in a private school to provide special education and related services needed by the child. Parents may also place their children in a private school, but they cannot receive financial reimbursement from schools for a unilateral placement unless the parents can establish that the school failed to make a FAPE available to the child in the public school. Section 1412 of the IDEA provides some additional limitations on reimbursement, including requirements that parents notify school officials of their objections and their intent to enroll the child in private school, make the child available for evaluation, and otherwise act reasonably in the opinion of a reviewing judge. In Forest Grove School District v. T.A., 557 U.S. ____ (2009), the U.S. Supreme Court held that these provisions of the IDEA did not bar parents of a child with a disability from seeking reimbursement for the costs of private school tuition, even if the child had not previously received special education and related services through the public school, if the public school had failed to provide a FAPE to a child later found to be eligible and the private school placement was appropriate.

The provision of IDEA services in private religious schools raises some additional legal concerns. However, the IDEA states that IDEA services “may be provided to children with disabilities on the premises of private, including religious, schools, to the extent consistent with law.” 20 U.S.C. § 1412 (2004). Courts have held that the provision of IDEA services in religious

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schools did not violate the Establishment Clause. In a five-to-four decision dealing with the refusal of a school district to provide a sign-language interpreter to accompany a deaf child to classes at a Roman Catholic high school, the United States Supreme Court held that this service was not barred by the Establishment Clause. The Court found that such a service was part of a general government program that distributes benefits neutrally to any child qualifying as disabled under the IDEA, without regard to the sectarian–nonsectarian, or public–nonpublic nature of the school the child attends. Regarding the interpreter, the Court determined that, unlike a teacher or counselor, the interpreter neither added to nor subtracted from the sectarian school’s message, but merely translated whatever material was presented, and the Establishment Clause required no absolute bar to placing a public employee in a sectarian school. See Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993). Similarly, providing a disabled student with publicly funded transportation from a public sidewalk in front of her parochial school to her special education classes at a public school was upheld under the Missouri Constitution. A federal district court stressed that the transportation was a related service to her educational program under the IDEA and that the service benefitted the student, not the parochial school. See Felter v. Cape Girardeau School District, 810 F. Supp. 1062 (Mo. 1993). But a 2004 amendment to the IDEA declares that “Special education and related services provided to parentally placed private school children with disabilities, including materials and equipment, shall be secular, neutral, and nonideological.” 20 U.S.C. § 1412 (2004).

F. Related Services Under the IDEA, “related services” may include the following:

(A) IN GENERAL . . . [T]ransportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. (B) EXCEPTION—The term [related services] does not include a medical device that is surgically implanted, or the replacement of such device. 20 U.S.C. § 1401 (2004).

This list of related services is illustrative, not exhaustive, and other supportive, corrective, or developmental services may be required to assist a child with a disability to benefit from special education.

Because of the high costs associated with providing health-related services for children with disabilities, there is often controversy over whether school districts must pay for particular health services as related services. The line between health services required as related services and medical services that are not required is not always clear. The United States Supreme Court first addressed this issue in Irving Independent School District v. Tatro, 468 U.S. 883 (1984). In this case, the parents of an eight-year-old girl born with spina bifida requested that clean intermittent catheterization (CIC) be performed by school personnel as a related service. The child needed CIC services every three to four hours, including during school, to avoid injury to her kidneys. Performing CIC takes only a few minutes, does not require medical expertise, and can

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be learned by a layperson with less than an hour’s training. The Court held that CIC was not a medical service that the school need only provide for purposes of diagnosis or evaluation, but was a required related service necessary for the child to benefit from special education. However, the Court did recognize that required related services included “only those services necessary to aid a handicapped child to benefit from special education . . . regardless how easily a school nurse or lay-person could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.” Further, the Court noted that “school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician.”

The United States Supreme Court addressed the issue of school nursing services again in 1999. In Cedar Rapids v. Garret F., 526 U.S. 66 (1999), the Court applied the two-part test established in Tatro to determine whether a school district must provide requested health services as related services. Under the Tatro test, requested health services must be provided as related services if: (1) the requested “supportive services” are necessary for the child to benefit from special education; and (2) the services are not excluded as “medical services” that would require the services of a physician for other than diagnostic or evaluation purposes. In Garret F., parents requested one-on-one nursing care for a wheelchair-bound and ventilator dependent student. In a seven-to-two decision, the Court held that the school district must provide the requested services as related services under the IDEA. Under the Tatro test, the services were necessary for the student to benefit from special education, and although very expensive, need not be performed by a physician.

G. Procedural Protections To protect the rights of children with disabilities, the IDEA provides significant procedural due process protections. Notice and hearing rights are provided throughout the special education process, from initial identification and consideration of eligibility through completion of the special education program or a determination of ineligibility. The procedural safeguards in the IDEA include:

1. An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child; 2. Procedures to protect the rights of the child whenever the parents of the child are not known; 3. Written prior notice to the parents of the child whenever such agency—

(A) proposes to initiate or change; or (B) refuses to initiate or change; the identification, evaluation, or educational placement of the child . . . or

the provision of a free appropriate public education to the child. 4. Procedures designed to ensure that the notice required . . . is in the native language of the parents, unless it clearly is not feasible to do so; 5. An opportunity for mediation; 6. An opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. 20 U.S.C. § 1415 (2004).

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The written prior notice referred to in Section 1415 of the IDEA must include:

1. a description of the action proposed or refused by the agency; 2. an explanation of why the agency proposes or refuses to take the action; 3. a statement that the parents . . . have protection under the procedural safeguards . . . and . . . the means by which a copy of the description of the procedural safeguards can be obtained; 4. sources for the parents to contact to obtain assistance in understanding the provisions; 5. a description of other options considered by the IEP Team and the reason why those options were rejected; and 6. a description of the factors that are relevant to the agency’s proposal or refusal. 20 U.S.C. § 1415 (2004).

A document describing these procedural safeguards must be given to parents upon initial referral of the child for evaluation, upon the first occurrence of filing a complaint, and upon request by a parent. The school must also have a model form available to assist parents in filing an IDEA complaint. The document describing these procedural safeguards must be written in the native language of the parents, unless it is clearly not feasible, and written in an easily understandable manner. The IDEA requires that this document must contain a full explanation of rights related to:

(A) independent educational evaluation; (B) prior written notice; (C) parental consent; (D) access to educational records; (E) opportunity to present complaints, including;

(i) the time period in which to make a complaint; (ii) the opportunity for the agency to resolve the complaint; and (iii) the availability of mediation;

(F) the child’s placement during the pendency of due process proceedings; (G) procedures for students who are subject to placement in an interim alternative educational setting; (H) requirements for unilateral placement by parents of children in private schools at public expense; (I) due process hearings, including requirements for disclosure of evaluation results and recommendations; (J) State-level appeals (if applicable in that State); (K) civil actions; and (L) attorneys’ fees. 20 U.S.C. § 1415 (2004).

One of the most important procedural protections in the IDEA is the right to an impartial due process hearing. Under the IDEA, any party to a hearing shall be accorded:

1. the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; 2. the right to present evidence and confront, cross-examine, and compel the attendance of witnesses; 3. the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and 4. the right to written, or, at the option of the parents, electronic findings of fact and deci-sions. 20 U.S.C. § 1415 (2004).

The IDEA also includes a “stay-put” provision which states:

[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-

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current educational placement of such child, or, if applying for initial admission to a public school shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. 20 U.S.C. § 1415 (2004).

However, there are exceptions to this “stay-put” provision, such as when the special-education student poses a serious threat to safety or engages in certain other types of misconduct.

H. Discipline

Although all students are guaranteed due process of law, including notice and hearing prior to significant impingements on liberty or property rights, special concerns exist in disciplining children with disabilities. When school officials seek to suspend or expel children with disabilities, the IDEA imposes significant additional legal protections for these children, including a “stay-put” provision to protect them from unilateral removal from their current placements. These special protections are rooted in concerns over historical prejudices against individuals with disabilities, misunderstandings about physical and mental conditions that may cause problem behaviors, and fears that school officials may suspend or expel children with disabilities based on prejudice, misunderstanding, financial concerns, or other improper motives. The United States Supreme Court addressed the issue of disciplinary removals of children with disabilities and the effect of the “stay-put” provision in Honig v. Doe, 484 U.S. 305 (1988).

In Honig, California school officials were attempting to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In determining whether the “stay-put” provision prohibited unilateral removal of these students, the Court stated:

The language of the [stay-put provision] is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, “the child shall remain in the then current educational placement” . . . Faced with this clear directive, [school officials ask] us to read a “dangerousness” exception into the stay-put provision . . . [school officials’] arguments proceed . . . from a simple, common-sense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy [due process] proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts . . . Congress passed the [Act] after finding that school systems across the country had excluded one out of every eight disabled students from classes. In drafting the law, Congress was largely guided by the recent decisions in [PARC v. Pennsylvania and Mills v. Board of Education], both of which involved the exclusion of hard-to-handle disabled students . . . Our conclusion that [the stay-put provision] means what it says does not leave educators hamstrung. The Department of Education has observed that, “[w]hile the [child’s] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.” * * * Such procedures may include the use of study carrels, timeouts, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays. This authority, which respondent in no way disputes, not only ensures that school administrators can protect the safety of others by

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promptly removing the most dangerous of students, it also provides a “cooling down” period during which officials can initiate IEP review and seek to persuade the child’s parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts. (pp. 323–326)

In response to heightened concerns over school violence and drug use, amendments to the IDEA provided school officials with additional authority to change the placement of special-education students that carry weapons, are involved with drugs, or inflict serious bodily injury on others:

(G) SPECIAL CIRCUMSTANCES—School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child—

(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency; (ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency. 20 U.S.C.§ 1415 (2004).

The term “weapon” in §1415 is given the same meaning as “dangerous weapon” under 18 U.S.C. § 930 (2010), which defines a “dangerous weapon” as “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1⁄2 inches in length.” The term “illegal drugs” means a controlled substance (that is not legally possessed or used) as defined under the Controlled Substances Act, 21 U.S.C. § 812 (2010). The term “serious bodily injury” means “bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” 18 U.S.C. § 1365 (2010).

The IDEA also authorizes school officials to remove a child with a disability to an alternative educational setting if the child violates the school’s code of student conduct. The child may be removed to the alternative placement for up to 10 school days regardless of whether the behavior was a manifestation of the child’s disability. If the behavior is not a manifestation of the child’s disability, school officials may apply the same disciplinary measures that apply to all children, except that a child with a disability must continue to receive a FAPE:

Placement in Alternative Educational Setting Authority of School Personnel

(A) CASE-BY-CASE DETERMINATION—School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct; (B) AUTHORITY—School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities);

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(C) ADDITIONAL AUTHORITY—If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability . . . the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 612(a)(1) [FAPE must be available] although it may be provided in an interim alternative educational setting. (D) SERVICES—A child with a disability who is removed from the child’s current placement under subparagraph (G) [for weapons, drugs, or inflicting serious bodily injury] (irrespective of whether the behavior is determined to be a manifestation of the child’s disability) or subparagraph (C) [behavior determined not to be a manifestation of disability] shall:

(i) continue to receive educational services . . . so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and (ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. 20 U.S.C. § 1415 (2004).

If school officials believe that a child with disabilities presents a serious danger to the child or others, school officials may ask a hearing officer to place a dangerous child in an alternative setting. The 2006 IDEA regulations allow a hearing officer to order a “change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.” 34 C.F.R. § 300.532(b)(2)(ii) (2006). The 2006 regulations also provide that this 45-school-day removal may be repeated as necessary if school officials can establish that “returning the child to the original placement is substantially likely to result in injury to the child or to others.” 34 C.F.R. § 300.532(b)(3) (2006).

Another important consideration in disciplining children with disabilities is determining whether the problem behavior is a manifestation of the student’s disability. If a child’s behavior is a manifestation of a disability, it would be unfair to punish that child for behavior that was caused by the disability. For example, children suffering from Tourette’s syndrome exhibit symptoms including lack of muscle coordination, involuntary movements, tics, incoherent grunts and barks, and the use of vulgar, obscene, or sacrilegious language, resulting in behaviors that would merit punishment in most children, but may be uncontrollable for a child suffering from Tourette’s syndrome. Accordingly, the IDEA requires the IEP team and other qualified personnel to conduct a review to determine whether a child with a disability’s problem behavior is a manifestation of the child’s disability, if disciplinary actions constitute a change in placement.

(E) MANIFESTATION DETERMINATION— (i) IN GENERAL—Except as provided in subparagraph (B) [10 day or less removal for violation of code of student conduct], within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine—

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(I.) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or II.) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

(ii) MANIFESTATION—If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability. 20 U.S.C. § 1415 (2004).

If the behavior is a manifestation of the child’s disability, the IEP team must implement a behavioral intervention plan, and except as provided for under the provisions of the IDEA allowing for a removal for weapons, drugs, or serious bodily injury “return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.” 20 U.S.C. § 1415 (2004).

Manifestation determinations are only required when a child is subjected to a disciplinary change of placement. 34 C.F.R. § 300.530(e) (2006). A change in placement occurs when:

(1) The removal is for more than 10 consecutive school days; or (2) The child has been subjected to a series of removals that constitute a pattern—

(i) Because the series of removals total more than 10 school days in a school year; (ii) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and (iii) Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536(a) (2006).

If the result of the review is a determination that the student’s behavior was not a manifestation of the disability, school officials may discipline the student in the same manner that other students would be disciplined, including suspension for up to 10 school days. No special services are required during this initial 10-school-day suspension. However, an exclusion for more than 10 consecutive school days triggers the procedural protections of the IDEA. When a student’s behavior is not a manifestation of the student’s disability, school officials may lawfully long-term suspend for more than 10 school days or expel the student, subject to the IDEA procedural protections. However, schools cannot terminate special-education services for these students. Section 1412 of the IDEA requires the continuation of FAPE services for children with disabilities who have been suspended or expelled from school for more than 10 school days. The 2006 IDEA regulations note that although schools do not have to provide IDEA services during the first 10 school days a child is removed during the school year, for subsequent removals appropriate services must be provided. School officials determine which services are needed in consultation with at least one of the child’s teachers. When the child is subsequently removed for more than 10 consecutive school days or the removal constitutes a change in placement, the child’s IEP Team determines what services are appropriate during the removal. For any removal where IEP services are required, these services must allow the child to continue studies under the general education curriculum, and to progress toward meeting IEP goals, although in a different setting.

If the student’s behavior is a manifestation of the student’s disability, the student generally cannot be punished for that behavior. Nonetheless, there are still many behavior management options available to school officials. As the Court noted in Honig v. Doe, school officials may use in-school methods such as study carrels, time-out, detention, or the restriction of privileges, that are used with other students. Because these procedures are in-school, courts have held that they

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are not considered a change in placement and do not trigger the IDEA due process protections, unless they are used so extensively that they deny the student a FAPE. As noted earlier, the 2004 amendments to the IDEA also allow school officials to establish a 45-school-day interim educational placement for students with violations related to weapons, drugs, causing serious bodily injury, or by convincing a hearing officer that the child with a disability is dangerous to the child or others. Further, there is legal support for removing a student from the regular classroom when the student’s disability-related behavior results in excessive disruption of the regular classroom. See Clyde K. v. Puyallup School District, 35 F.3d 1396 (9th Cir. 1994). School officials may also obtain a court order for a removal or change of placement of a student that presents a serious potential danger to either the student or others. Permanent changes in the student’s placement should be accomplished through the IEP process by establishing that the current placement is not appropriate for the student. Finally, it should be remembered that the IDEA limitations on disciplinary changes in placements only apply to situations in which schools have failed to obtain parental consent to proposed actions. The preceding limitations do not apply to situations in which school officials can successfully negotiate a mutually agreeable resolution with the student’s parents.

It should also be noted that according to the Office for Civil Rights (OCR), exclusions from bus transportation are subject to the same procedural safeguards as other disciplinary exclusions, regardless of whether transportation is a required related service for that student. Nonetheless, if a student’s behavior on the bus presents a serious problem, school officials may offer appropriate alternative transportation services to parents, or seek a change in the student’s transportation services through a change in the IEP when appropriate. The 2004 amendments to the IDEA also establish that students not currently eligible for IDEA services and facing disciplinary action are entitled to protections under the IDEA if school officials “had knowledge” that the student had a disability before the occurrence of the behavior that precipitated the disciplinary action. The IDEA states that school officials shall be deemed to have knowledge that a student had a disability if:

(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child; or (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency. 20 U.S.C. § 1415 (2004).

Amendments to the 2004 IDEA also state that “A local educational agency shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child . . . or has refused services under this part or the child has been evaluated and it was determined that the child was not a child with a disability under this part.” If there is no basis of knowledge prior to taking disciplinary actions “the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors.” If, however, a request for an evaluation of the child is made during the time the child is subjected to the disciplinary measures “the evaluation shall be conducted in an expedited manner.” If it is determined that the child is a child with a disability, the child must be provided special-education and related services “except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.” 20 U.S.C. § 1415 (2004).

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School officials may also choose to refer students to law enforcement agents when students are suspected of committing criminal acts. The IDEA states:

Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. 20 U.S.C. § 1415 (2004).

School officials that report a crime must also transmit copies of the student’s special-education and disciplinary records to the appropriate authorities. However, law enforcement agents and judicial authorities have a duty to protect the public by enforcing criminal laws and are not bound by the mandates of the IDEA. Students with disabilities that are convicted of crimes may be subjected to the same penalties imposed on others convicted of those crimes, including incarceration.

SUMMARY Discipline procedures under the IDEA may be both the most significant and the most confusing provisions for many educators. Accordingly, the following summary of incrementally severe disciplinary options is provided.

Behavior Management Strategies To attempt to modify problem behavior, school officials may utilize a variety of behavior and conflict management strategies, including student carrels, time-outs, detention, restrictions in privileges, etc. As long as IEP services are provided, and there is no change in placement, school officials may unilaterally implement these behavior management strategies. Obtaining Parental Consent If more serious measures are necessary, school officials may first obtain parental consent for needed changes in placement or for other appropriate behavior management strategies. If parental consent is obtained, the IDEA limitations on disciplinary actions are generally not triggered. Unilateral 10-School-Day Removal Provided their actions are not discriminatory, school officials may unilaterally remove an IDEA eligible student for up to 10 school days for violating a code of student conduct. No services are required, and no manifestation determination is necessary. Subsequent 10-School-Day or Less Removals There is no absolute limit on the total number of days per year that a student may be removed for separate incidents of misconduct, so long as no single removal exceeds 10 consecutive school days and there is no pattern of removals. Factors considered in determining whether there is a pattern of removals include the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. However, schools must provide services to the extent necessary to allow the child to make progress toward meeting IEP goals and participate in the general curriculum, although in a different setting. School officials determine which services are needed in consultation with at least one of the child’s teachers. Manifestation determinations are only required when a child is subjected to a disciplinary change of placement. Long-Term Suspensions and Expulsions Students may be long-term suspended or expelled for a violation of a code of student conduct that is not a manifestation of the student’s disability. However, any removal beyond 10 consecutive school days constitutes a change in placement, triggering IDEA due process protections. Further, schools must continue to provide a FAPE to these students. For removals beyond 10 consecutive school days, the child’s IEP team determines what services are necessary to provide a FAPE.

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45-School-Day Removals for Weapons, Drugs, or Inflicting Serious Bodily Injury School officials may unilaterally remove a student to an alternative educational placement for up to 45 school days for possession of weapons, drugs, or inflicting serious bodily injury. 45-School-Day Removals for Dangerousness School officials may ask a hearing officer to remove a potentially dangerous student to an alternative educational placement for up to 45 school days by presenting evidence that “maintaining the current placement of such child is substantially likely to result in injury to the child or to others.” Additional 45-school-day extensions may be repeated as necessary to prevent a dangerous placement. Obtaining a Court Order If the preceding options fail, school officials may obtain a court order for a removal or change of placement of a student that presents a serious danger to either the student or others. Reporting Crimes School officials may report students suspected of committing crimes to law enforcement agents, who have a duty to enforce criminal laws and are not bound by IDEA limitations.

I. Transition Services The transition from school to work, independent living, or further education is difficult for many young adults. Special-education students may have unique difficulties in making this transition. In 1990 Congress amended the IDEA to require the provision of “transition services” for children with disabilities. Transition services are a coordinated set of activities designed to facilitate movement from school to postschool activities. Transition services may include instruction, related services, community experiences, and the development of employment and adult living skills.

A 1997 amendment to the IDEA required that a “statement of the transition service needs” must be included in the IEP beginning at age fourteen, and updated annually. This amendment focused earlier attention on educational programming designed to transition the child from school to postschool activities. It was intended to augment, not replace, the transition services requirement that begins at age sixteen, or sooner if deemed appropriate by the IEP team. A determination of what transition services are appropriate should be based on the individual student’s needs and should take into account the student’s strengths, preferences, and interests. The 2004 amendments to the IDEA define transition services as “designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child” to facilitate the child’s transition from school to postschool activities. 20 U.S.C. § 1401 (2004).

J. Graduation and Competency Exams Special-education services terminate on graduation or age ineligibility. Generally, to be eligible for graduation a child with a disability must have completed an appropriate IEP. Graduation is a change in placement, and parents must receive notification that the student is scheduled for graduation. However, some students will reach the maximum age for IDEA eligibility before completing their IEP goals and objectives. If a child with a disability has not graduated, the IDEA provides federal funds for special-education services through age twenty-one. But if state law does not provide for public education for nondisabled children from ages eighteen through twenty-one, states are not required to provide special education for children with disabilities from ages eighteen in that age group. Further, all students, including special-education students, may be required to pass competency exams before obtaining a high school diploma. Because of the severity of their disabilities, some children with disabilities will be unable to pass these exams and obtain a high school

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diploma. Courts have upheld competency exam requirements, even for children with disabilities, provided that students were given notice of the general contents of the exam and an opportunity to learn the required academic content. See Brookhart v. Illinois State Board of Education, 697 F.2d 179 (7th Cir. 1983).

K. Cost Issues

When facing parental requests for excessively expensive services, schools may find some potential relief in the United States Supreme Court’s decision in Board of Education v. Rowley. In Rowley, the Court held that schools are not required to maximize a child’s educational potential by providing superior special education and related services regardless of expense. Instead, the Court found that the requirements of the IDEA are satisfied when children with disabilities are provided with appropriate “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”

According to Rowley, special-education services need only be appropriate for the child and sufficient to provide educational benefits. The services offered do not have to be the best services available regardless of cost. As long as the school’s decision concerning the provision of special-education services is appropriate, the choice of which educational methodology and service to provide is left to school officials. Parents may express their wishes, but if school officials’ choice is also appropriate, school officials may choose between appropriate options and need not choose the most expensive option, regardless of parental wishes. See Springdale School District v. Grace, 693 F.2d 41 (8th Cir. 1982).

However, for some children, the only appropriate option may still be very expensive. Before school officials may raise cost alone as a defense under the IDEA, they must establish that the school has provided a proper continuum of placements, that the child in question would not experience a total denial of education because of the failure to provide the expensive service, and that other special education students may be denied a FAPE because of excessive expenditures on one child. See Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).

Notes and Questions Significant progress has occurred in providing educational services for children with disabilities. Prior to the passage of P.L. 94-142, Congress heard the following testimony stating that:

Some years ago, during the course of a visit to the State Institution for the mentally retarded, I encountered a little girl who was lying in a crib. Wondering why she was so confined while the other children were not, I began to play with her. I found that even though I could make eye contact with her, she was unable to follow me with her eyes for more than about 12 inches. I began to try to teach her. In about 15 minutes she could follow me about a quarter of the way around the bed. I was convinced then, and still am, that with a little work the child could have been taught some useful behavior and could have been gotten out of the crib. It seems safe to say that no one with any authority was concerned about the education of that little girl . . . It seems antithetical to American philosophy, as I see it, that whether or not a handicapped child gets proper care and proper educational treatment depends on the fatness of that child’s father’s wallet.

Appropriate educational services can have tremendous benefits for children with disabilities, helping them to live more independent and productive adult lives. Although this education is expensive, what are the economic costs of failing to educate children with disabilities? In addition to the economic costs of failing to educate disabled children, how should the incalculable

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personal costs of denying education to disabled children be weighed, including the diminished quality of life for the girl just discussed, and the possibility that she might spend the rest of her life lying in a bed staring at the ceiling, absent appropriate educational assistance?

Since the passage of P.L. 94-142 in 1975, providing special-education and related services for children with disabilities has required a constantly increasing allocation of resources to special-education programs. Many school districts now spend 20 percent of their total budgets on special-education programs. While funding per student in United States schools leveled off in the 1990s, spending on special-education programs continued to increase. How have escalating expenditures for special-education programs affected regular education programs? How should Congress, the states, and schools balance the educational needs of children with disabilities and the fiscal realities of limited resources? Are the costs of current special-education programs justified by the benefits? Are there more efficient ways of achieving similar benefits?

Limitations on disciplining special-education students and the placement of disruptive special-education students in regular classrooms continue to generate controversy. Are different disciplinary policies for special-education and regular-education students justified? Will students, parents, and others in your community accept this justification? Regular-education students and their parents have no legal standing under the IDEA to challenge the placement of disruptive or potentially dangerous students in their classroom. Should they? If current provisions in the IDEA are problematic, what preferable alternatives would you suggest?

Like all laws, current special-education laws are the product of a complex political and governmental process. In examining the results of this process, do current special-education laws seem to predominately reflect a rational balancing of competing interests, or the power of special-interest politics? In the IDEA, Congress has attempted to strike an appropriate balance between school officials’ authority to make decisions and the rights of children with disabilities. In the 2004 amendments to the IDEA, Congress generally shifted the balance under the IDEA more in favor of school authority and limited some student and parent rights. For example, Congress reduced some due process protections, strengthened options for dealing with student discipline issues, and made it more difficult for parents to challenge school officials’ decisions under the IDEA. Two decisions from the U.S. Supreme Court contributed to this general trend toward greater school authority and diminished support for those challenging the decisions of school officials. In Schaffer v. Weast, 546 U.S. 49 (2005), the Court held that the party challenging an IEP bears the initial burden of proof. The resulting presumption that the challenged IEP is valid means that those challenging the IEP, generally parents, are less likely to prevail. The Court’s decision in Arlington Central School District v. Murphy, 548 U.S. 291 (2006) further added to the difficulties of those challenging school officials’ decisions under the IDEA by holding that even if parents were to prevail in their challenge, they still could not recover the costs of hiring the expert witnesses and consultants needed to prove their case. Together, the Court’s decisions in these two cases make it much more difficult for parents, especially those with limited resources, to challenge school officials’ decisions under the IDEA. In Winkelman v. Parma City School District, 550 U.S. 516 (2007), the Court did, however, recognize that because the IDEA grants parents independent, enforceable rights, including an entitlement to a FAPE for their child, parents are entitled to prosecute those rights on their own behalf and to act pro se on behalf of their children.

II. SECTION 504 OF THE REHABILITATION ACT

Unlike the IDEA, which only applies to eligible children with disabilities, Section 504 of the Rehabilitation Act of 1973 protects both handicapped children and adults from discrimination in

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institutions receiving federal funds.* As recipients of federal funds, public schools must comply with the mandates of Section 504. Section 504 protections may also apply to private schools, if they receive federal funds. Further, religious schools are not exempt from Section 504 protections if they receive federal funds. The Department of Education Regulations for Section 504 state

No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance. 34 C.F.R. § 104.4 (2010).

To qualify for protection under Section 504, an individual must be a “handicapped person,” which is defined as follows:

[A]ny person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. 34 C.F.R. § 104.3 (2010).

Other relevant terms are defined as follows:

(i) “Physical or mental impairment” means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (ii) “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (iii) “Has a record of such an impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. (iv) “Is regarded as having an impairment” means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in . . . this section but is treated by a recipient as having such an impair-ment. 34 C.F.R. § 104.3 (2010).

If otherwise qualified handicapped persons fall within the protections of Section 504, they may not be discriminated against in programs receiving federal assistance and are entitled to “reasonable accommodations” to facilitate their participation. Reasonable accommodations often include making facilities accessible and usable by handicapped persons and making reasonable modifications in academic requirements or working conditions. An accommodation is not reasonable, and therefore not required, if it would result in unreasonable safety risks, health risks, or costs. Further, an institution is not required to provide a specific accommodation requested by an individual. Instead, an institution is only required to provide a reasonable ___________________ *Although amended sections of the Rehabilitation Act use the term “individual with a disability,” current Department of Education Regulations retain the term “handicapped person,” and this term is used consistently throughout this section to avoid confusion.

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accommodation, and when more than one reasonable accommodation exists, the institution may choose which reasonable accommodation to provide.

A. Students and Section 504 Section 504 protects handicapped students from discrimination in all programs receiving federal funds. As recipients of federal funds, schools may not discriminate against or exclude handicapped students from participation in any school program or activity solely because they are handicapped. However, handicapped students must be otherwise qualified for participation in particular school programs or activities. Schools are not required to accommodate participation of a handicapped student when no reasonable accommodation is possible, or when the student is not otherwise qualified for participation in a program or activity. For example, a school’s exclusion of a blind student from driving in a driver’s education program would not violate the mandates of Section 504 because the student could not be safely accommodated in this activity. Further, a handicapped student who failed to qualify for the school basketball team because of inadequate skills could not demand inclusion on the team simply because the student was handicapped.

Section 504 does not require unreasonable accommodations or preferential treatment of handicapped students. Instead, Section 504 requires reasonable accommodations and nondiscrimination to ensure fair treatment of handicapped students. Accordingly, tests and other assessments of handicapped students should be designed to measure relevant essential qualifications, and not the effects of a student’s handicap. If tests or other assessments have a disproportionate impact on handicapped students and are not related to essential qualifications, a waiver may be required to accommodate handicapped students. Further, testing conditions may need to be modified to accommodate handicapped students, including alternative locations for exams, extended time limits, oral examinations, and other reasonable accommodations to ensure that tests are measuring relevant skills and not the effects of a student’s handicap.

Handicapped students may not be suspended, expelled, or otherwise punished for manifestations of their disability. See Jonathan G. v. Caddo Parish School Board, 875 F. Supp. 352 (W.D. La. 1994), holding that a school district could not suspend a learning-disabled student for conduct related to his disability. The Office for Civil Rights (OCR) generally applies the same standards to the suspension or expulsion of 504-eligible students as are applied to IDEA-eligible students.

Schools may sometimes want to exclude a student not for disciplinary reasons, but because the student carries a contagious disease. Although schools may lawfully exclude students that pose a serious risk of infection to others, significant controversy occurred in many communities concerning whether to allow children infected with human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) to attend regular public school classes. Many parents feared that their children could contract HIV or AIDS through contact with infected children by being bitten, having body fluids enter an open wound, or even being breathed on. Media portrayals of the disease’s ravages and the absence of a cure heightened parents’ concern. Statements from such authorities as the Surgeon General of the United States and officials of the Center for Disease Control (CDC) often failed to persuade parents that their fears are unfounded.

Suits have been brought both by parents whose infected children were banned from regular school programs and by parents who objected to the admission of these students to regular classes. To date, courts have revealed a high degree of sensitivity to students with HIV or AIDS and to their being included in the public school mainstream. This view is presented in Thomas v. Atascadero Unified School District.

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THOMAS v. ATASCADERO UNIFIED SCHOOL DISTRICT United States District Court, Central District of California, 1987 662 F.Supp. 376

STOTLER, District Judge * * *

Plaintiffs Robin and Judy Thomas are the parents and guardians of Ryan Thomas and bring this action on his behalf. Ryan Thomas is a five-year-old boy eligible under California law to attend kindergarten in the Atascadero Unified School District.

Defendant Atascadero Unified School District (“School District”) is a public entity organized under the laws of the State of California. The School District is a recipient of “federal financial assistance” within the meaning of 29 U.S.C. § 794.

* * * Acquired Immune Deficiency Syndrome (AIDS) is the clinical manifestation of a dysfunction of

the human immune system caused by a recently discovered virus. The AIDS virus has received several names: Human T-Lymphotropic Virus Type III (HTLV-III); Lymphadenopathy Associated Virus (LAV); AIDS-Associated Retrovirus (ARV); and, most recently, Human Immunodeficiency Virus (HIV).

To date, there is no vaccine against or cure for AIDS. A range of symptoms may result from infection with the AIDS virus have been classified by the Centers for Disease Control (“CDC”) into four groups of symptoms: (I) early acute, though transient, signs of the disease; (II) asymptotic infection; (III) persistent swollen lymph nodes; and (IV) presence of opportunistic disease and/or rare types of cancer, including one known as Kaposi’s Sarcoma.

* * * Ryan Thomas is infected with the AIDS virus. He became infected with the AIDS virus as an

infant as the result of a contaminated blood transfusion received at Oakland’s Children’s Hospital where he was being treated for complications arising out of his premature birth. He suffers from significant impairment of his major life activities.

Ryan was diagnosed as being infected with the AIDS virus in early 1985. During the first four years of his life, Ryan Thomas had frequent pulmonary and middle ear problems as well as chronic lymphadenopathy. These difficulties are attributable to his infection with the AIDS virus.

For over a year, since the diagnosis that he was infected with the AIDS virus, and since his treatment for this condition began, Ryan’s medical condition has improved. * * * At this point it is unclear what course his medical condition will take. Both of Ryan’s treating physicians, Dr. Fields and Dr. Church, have written to the School District indicating that there is no medical reason why Ryan cannot attend regular kindergarten classes.

The best available medical evidence shows that the AIDS virus is not spread in the air by infected droplets as are the common cold, influenza and tuberculosis. The virus is fragile and is killed by most household disinfectants. The virus is transmitted from one person to another only by infected blood, semen or vaginal fluids (and, possibly, mother’s milk). Transmission by either semen or blood accounts for virtually all reported cases.

There are no reported cases of the transmission of the AIDS virus in a school setting. The CDC has stated that “[n]one of the identified cases of HTLV-III/LAV infection in the United States are known to have been transmitted in the school, daycare, or foster-care setting or through casual person-to-person contact.”

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The overwhelming weight of medical evidence is that the AIDS virus is not transmitted by human bites, even bites that break the skin. Based upon the abundant medical and scientific evidence before the Court, Ryan poses no risk of harm to his classmates and teachers. Any theoretical risk of transmission of the AIDS virus by Ryan in connection with his attendance in regular kindergarten class is so remote that it cannot form the basis for any exclusionary action by the School District.

In May 1986, the School District adopted a policy concerning the admission of students infected with “communicable diseases” including the “HTLV-III (AIDS)” virus. Pursuant to this policy a Placement Committee was created, including health professionals, parents, school officials and San Luis Obispo County’s Public Health Officer, to advise the School Board on the placement of children covered by the Policy.

On August 28, 1986, the Placement Committee met to make a recommendation concerning Ryan’s placement. At this meeting the Committee recommended Ryan’s admission to kindergarten. This recommendation was accepted by the School Board on September 2, 1986. No other kindergarten student had his placement considered in this manner. The standard procedure in the District is for a child’s parents to decide whether a child of kindergarten age will attend regular kindergarten classes.

Ryan attended kindergarten without incident from September 3 to 5, 1986. On September 8, 1986, Ryan was involved in an incident in which another child and Ryan got into a skirmish and Ryan bit the other child’s pants leg. No skin was broken.

Defendant Avina instructed Plaintiffs to keep Ryan at home after the incident so that the Placement Committee could reconsider its August 28th recommendation in light of this incident and determine “whether or not Ryan’s potential for again biting another student poses any danger to the health of others in the class.” On September 12, 1986, the Placement Committee recommended that Ryan be evaluated by a psychologist. This recommendation was accepted by the School Board. No similar action was taken concerning the other child involved in this incident.

In late September, Dr. Marcus Shira, a psychologist employed by the San Luis Obispo County Board of Education, conducted a “psychoeducational study” of Ryan. Dr. Shira prepared a report dated September 30, 1986, in which he concluded that Ryan would behave “aggressively” in a kindergarten setting because his level of social and language skills and maturity was below those of his classmates. Dr. Shira could not predict what form such “aggressive” behavior might take. Specifically, he did not predict that Ryan would “bite again.”

Based upon Dr. Shira’s study, on October 2, 1986, the Placement Committee recommended that Ryan be kept out of class and in “home tutoring” for the rest of the academic year. The County Public Health Officer, Dr. Rowland, abstained from this decision. On October 6, 1986, the School Board voted to exclude Ryan from his class until January 1987, and to have Ryan evaluated before the decision to exclude him would be reconsidered. Ryan suffered injury because of his exclusion from his kindergarten class after September 8, 1986, even though his injuries were not as great as they would have been if he was an older child.

In taking the actions outlined above, the School District acted cautiously and reasonably in attempting to balance all of the interests involved and to address the fear of AIDS which exists within the Atascadero community.

In August of 1985, the Centers for Disease Control for the United States Government (CDC) published information and recommendations concerning the education of children infected with the AIDS virus. Among the CDC’s recommendations are the following:

Decisions regarding this type of educational and care setting for HTLV-III/LAV-infected children should be based on the behavior, neurologic development, and physical condition of the child and the expected type of interaction with others in that setting. These decisions are best made using the team approach including the child’s physician, public health per-

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sonnel, the child’s parent or guardian, and personnel associated with the proposed care or educational setting. In each case, risks and benefits to both the infected child and to others in the setting should be weighed.

For the infected preschool-aged child and for some neurologically handicapped children who lack control of their body secretions or who display behavior, such as biting, and those children who have uncoverable, oozing lesions, a more restricted environment is advisable until more is known about transmission in these settings. Children infected with HTLV-III/LAV should be cared for and educated in settings that minimize exposure of other children to blood or body fluids.

Substantially similar guidelines and recommendations were issued by the American Academy of Pediatrics (AAP) in March of 1986 and the California State Department of Education (SDE) in May of 1986.

The placement Committee took the recommendations of the CDC into account in its determinations and recommendations regarding Ryan Thomas following the biting incident on September 5, 1986.

Aside from its citation to the recommendations of the CDC, AAP, and SDE, the School District has presented no medical evidence to prove that the AIDS virus can be transmitted by human bites. The information and recommendations published by the CDC, AAP, and SDE cite no such medical evidence and do not, of themselves, prove that transmission by biting is possible. The Defendant School District is a recipient of federal funds within the meaning of 29 U.S.C. § 794, § 504 of the Federal Rehabilitation Act of 1973.

Ryan Thomas is a “handicapped person” within the meaning of § 504 of the Rehabilitation Act of 1973. * * *

Ryan Thomas is “otherwise qualified” to attend a regular kindergarten class within the meaning of § 504 of the Rehabilitation Act of 1973. Defendants have failed to meet their burden of demonstrating that Ryan is not “otherwise qualified” to attend kindergarten. * * * There is no evidence that Ryan Thomas poses a significant risk of harm to his kindergarten classmates or teachers.

Ryan Thomas has been subjected to different treatment from the treatment received by other kindergarten students in the District and excluded from his kindergarten class because of his “handicap.”

Defendants have not complied with the requirements of 45 C.F.R. § 88.4(b). In particular, Defendants have not complied with the requirement that “[a] recipient shall place a handicapped person in the regular educational environment created by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.”

Based on the foregoing, Plaintiffs are likely to succeed on the merits. Ryan Thomas has suffered irreparable injury because of his exclusion from class. There are serious questions presented by Plaintiff’s Motion and the balance of hardships tips in Plaintiff’s favor. Plaintiffs are entitled to the issuance of a preliminary injunction. * * *

* * * Plaintiffs are awarded the amount of $40,000.00 in attorneys fees and $2,387.50 in costs.

* * *

Notes

A decision similar to Thomas was rendered in District 27 Community School Board v. Board of Education of the City of New York, 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986). Here the court held that excluding students with AIDS violated not only Section 504 of the Rehabilitation Act but also the

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Equal Protection Clause of the Fourteenth Amendment. Additionally, the opinion provides a detailed description of AIDS epidemiology. See also Martinez v. School Board of Hillsborough County, 711 F. Supp. 1066 (M.D. Fla. 1990), where a student classified as trainable mentally handicapped (TMH) was diagnosed as suffering from AIDS-related complex, was able to control a condition of continuously sucking on her fingers, and “is well on her way to being fully toilet trained” was found to be “otherwise qualified” to attend a TMH classroom. The court in this instance was persuaded by several factors. These included findings that (1) the American Academy of Pediatrics’ Redbook had been revised, eliminating its earlier recommendations that “children who cannot control their bodily secretions should be placed in a more restricted environment”; (2) the student’s physician considered the risk to other students so low statistically that he did not think it required the precaution of separation from other students; and (3) there had been responsible conduct on the part of the student and her family through the accomplishment of substantial compliance with personal hygiene requirements as a prerequisite to interaction with other children.

Attempting to exclude children from regular school classes due to infectious diseases is not a new issue. Whether the exclusion is lawful is determined by weighing the legitimate interests of the infected child against the risk of infection. A decision to exclude a child must be based on sound medical data, and not mere speculation or phobia. For example, a federal appellate court held that under the Rehabilitation Act mentally retarded students thought to be carriers of hepatitis could not be excluded without sufficient cause. In this instance school authorities could not demonstrate that the health hazard posed by the children was anything more than a remote possibility, and the court agreed that isolating the carrier children would have detrimental effects. See New York State Association for Retarded Children v. Carey, 612 F.2d 644 (2nd Cir. 1979).

Schools may also seek to exclude a handicapped student from certain athletic activities to protect the student or to protect others. A decision on whether to exclude a handicapped student from participation in athletics requires balancing the student’s legitimate interests and the school system’s legitimate concerns. For example, the student may wish to have the most well-rounded school experience possible or the opportunity for a collegiate athletic scholarship, but the school has a responsibility to protect the physical well-being of the student and others if the handicapped student is allowed to participate in interscholastic athletics.

GRUBE v. BETHLEHEM AREA SCHOOL DISTRICT

United States District Court, Eastern District of Pennsylvania, 1982 550 F.Supp. 418

HUYETT, District Judge * * *

Before me is plaintiffs’ request for a preliminary injunction. In order to prevail, the plaintiffs must show a strong likelihood of success on the merits, that immediate, irreparable harm will result if the preliminary injunction does not issue, that the grant of the injunction will not substantially harm other parties, and that the public interest favors granting the injunction. * * *

The plaintiffs’ complaint presents two legal theories. First, they assert that Richard has been discriminated against in violation of the Rehabilitation Act of 1973 (Act) § 504. Secondly, they assert that he has been deprived of his Fourteenth Amendment right to equal protection giving rise to an action under 42 U.S.C. § 1983. At the preliminary injunction hearing, plaintiffs acknowledged that they rely primarily upon the Rehabilitation Act. I

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turn to the law applicable to a claim of discrimination under the Act and consider whether plaintiffs have shown a likelihood of success on the merits of this claim. Section 504 of the Act as amended provides: “No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” In interpreting this section, the Supreme Court has held that an “otherwise qualified” person “is one who is able to meet all of a program’s requirements in spite of his handicap.” * * * The Court interpreted § 504 as follows:

Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an “otherwise qualified handicapped individual” not be excluded from participation in a federally funded program “solely by reason of his handicap,” indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.

Three lower courts have addressed the import of § 504 in contexts similar to the present case. In Kampmeier v. Nyquist, the Court of Appeals for the Second Circuit considered an appeal from the denial of a preliminary injunction sought on behalf of children with one eye who were barred from participation in their school’s contact sports program. The school’s decision to bar the children was based upon the opinion of the school physician. The medical evidence the children introduced to refute the school physician’s opinion was equivocal. Referring to the school’s reliance on the opinion of the school physician, the court stated: “The plaintiffs have presented little evidence—medical, statistical or otherwise—which would cast doubt on the substantiality of this rationale.” Noting that the equities in the case were very close, the court concluded that this absence of evidence was fatal to plaintiffs’ claim. On the evidence presented, it could not be said that the school district lacked “substantial justification” for its action.

In Poole v. South Plainfield Board of Education, the plaintiff was a high school student with one kidney who was barred from his school’s wrestling team. Before the court were the defendant’s motions to dismiss for lack of subject matter jurisdiction and in the alternative, for judgment on the pleadings. The court denied both motions because on the facts as assumed in the opinion, the plaintiff had demonstrated a right to recovery. The school system’s medical director advised the system that it was inadvisable to permit a student with one kidney to participate in contact sports. The student refuted this opinion with medical opinions by his own experts. It was apparent to the court that both the school system physician and the Board itself were making a philosophical and not a medical judgment. The court stated

[T]he Board of Education decided that it was part of its function to protect its students against rational judgments reached by themselves and their parents. In effect, the Board’s decisions stands the doctrine of in loco parentis on its head. Traditionally, this doctrine has meant that a school system must act “in place of the parent” when the parent is absent. Finally, the court observed: It is undoubtedly true that injury to Richard’s kidney would have grave consequences, but so might other injuries that might befall him or any other member of the wrestling team. Hardly a year goes by that there is not at least one instance of the tragic death of a healthy youth as a result of competitive sports activity. Life has risks. The purpose of § 504, however, is to permit handicapped individuals to live life as fully as they are able, without paternalistic authorities deciding that certain activities are too risky for them.

Turning to the present case, I begin with reluctance an analysis which compels me to disturb a well-intended decision of local school authorities. The administration of our public schools is a matter almost always better left in the hands of members of the community which the schools serve. Had the plaintiffs relied solely on a conclusory equal protection

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challenge to the school district’s decision, the result I now reach may very well have been different. However, in this case, I am bound to uphold an act of Congress which is specifically designed to protect Richard and the right he is asserting.

The school district has advanced two reasons as “substantial justification” for its action. First, according to Dr. LaFrankin was his concern for the liability that might be imposed upon the school district if Richard loses the use of his kidney. This concern may be answered by the releases which the parents and son have offered to execute. However, the real issue is whether the risk of injury is significant enough to make this concern any justification for the district’s decision. Since the existence of a risk is also an issue under the district’s second justification, I will resolve these issues together. The district’s second justification for precluding Richard from participating in football is concern for his health, safety, and welfare. This concern is based on a risk perceived by the district that Richard could lose his one functioning kidney.

This case began when Dr. Delp decided that it would be helpful to get an opinion from Richard’s kidney physician with regard to his ability to play. From this I conclude that Dr. Delp did not consider himself qualified to make the determination. At least, he did not hold an opinion concerning Richard’s playing. The letters that were produced from Dr. Lennart were equivocal. His letter of August 16, 1982 is the most enlightening. He recognized in that letter that the decision whether or not Richard should play is not properly the subject of a medical opinion. The evidence is clear that neither Dr. Lennart, Dr. Delp, nor Dr. Hemmerlie had any facts which would permit them to make a rational medical evaluation of the existence of a risk. In an understandable abundance of caution, all three eventually concluded that the safest course was to say that Richard could not play. I conclude that the opinion of these three doctors cannot serve as substantial justification for the district’s actions where their decision lacks a medical basis.

Even if the letter signed by Dr. Delp and Dr. Hemmerlie could be considered as substantial justification at the time it was received, it is not justification for the continued refusal of the district to permit Richard to play in light of Dr. Moyer’s opinion. Dr. Moyer has the clini-cal experience and has performed the research required to come to a medical evaluation of the risk to Richard. His conclusion was that the risk of injury to the kidney is so slim that there is no medical reason why Richard cannot play football. Essentially, his testimony is consistent with that portion of Dr. Lennart’s correspondence which concluded that whether Richard should engage in contact sports is not a medical issue.

Richard’s selection for the team established that he is otherwise qualified to play football. For the reasons stated above, the defendant’s decision to preclude him from playing lacks substantial justification. Accordingly, I conclude that the plaintiffs have made a strong showing of likelihood of success on the merits.

* * * On the facts similar to ours, the courts in Kampmeier and Wright believed irreparable harm

existed. * * * In the case before me, the plaintiff is being deprived of an important right guaranteed by federal legislation. Even assuming that the denial alone might be compensated for by money damages, other injury flowing from the denial could not. Richard is a collegiate caliber football player who hopes that this talent will be his entree to college. Neither his grades, which are average, nor his family’s financial status offer as good an opportunity for him to attend college as does his athletic ability in this sport. Whether such an opportunity will materialize depends upon his having a chance to play his senior year. Even then, much will depend on his performance and other intangibles. It would be nearly impossible for him if he is denied the opportunity to play, to prove later, with the degree of certainty required for an award of money damages, the existence of a loss and its value.

Finally, I conclude that no injury is likely to result to the defendant or the public interest by granting this relief. The plaintiffs are willing to take responsibility for the decision

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that they have reached. The only credible medical opinion, Dr. Moyer’s, shows that the likelihood of the type of injury that concerns the defendant is almost nil. Finally, the public interest is served when plaintiffs such as these vindicate important federal rights.

For the reasons stated above, the motion for preliminary injunction will be granted.

* * *

Note

A federal district court held that a state athletic association’s age-limit rule, as applied to a student with Down syndrome, violated Section 504 and the student was entitled to a waiver. The nineteen-year-old student, who always placed last in the swimming meets, would otherwise be excluded from participation. The court rejected the argument that granting the waiver in this case would lead to a flood of new waiver applications. See Dennin v. Connecticut Interscholastic Athletic Conference, 913 F. Supp. 663 (D. Conn. 1996).

B. Employees and Section 504

Section 504 mandates that employers in institutions receiving federal funds must make “reasonable accommodations” to the limitations of handicapped employees who are otherwise qualified. Providing reasonable accommodations may mean restructuring physical access in work areas, redistributing tasks among jobs so that handicapped employees can function in their positions, eliminating unnecessary job qualifications, and other reasonable modifications. It does not mean that employers must tolerate substandard job performance or hire persons whose employment would threaten the safety of others.

The United States Supreme Court addressed the issue of whether having a contagious disease, tuberculosis in this instance, is a handicapping condition under Section 504. In its decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Court stated:

Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of “handicapped individual” to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of “handicapped individual” is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were “otherwise qualified.” Rather, they would be vulnerable to discrimination on the basis of mythology—precisely the type of injury Congress sought to prevent. (pp. 284–285)

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The Court cited several “well established” criteria to be used to determine whether a “handicapped” person is an “otherwise qualified” employee: whether, given “reasonable accommodation,” the person can meet all of a program’s requirements or can perform “the essential functions” of the job. Accommodation is not reasonable if it imposes “undue financial and administrative burdens” on the employer or requires a fundamental alteration in the “nature of the program.”

A teacher diagnosed as having the AIDS virus alleged that his reassignment to an administrative position violated Section 504. In a decision filled with references to Arline, a federal court of appeals upheld the teacher’s motion for a preliminary injunction reinstating him to classroom duties. The court noted the overwhelming consensus of medical testimony, which revealed that the teacher posed no significant risk of spreading the disease. Additionally, the court found that the reassignment to an administrative position, although involving no monetary deprivation, failed to utilize the teacher’s skills and, thus, injured him emotionally and psychologically. See Chalk v. United States District Court, 840 F.2d 701 (9th Cir. 1988).

However, if a handicapped person presents a significant risk of transmitting a serious disease to others, and reasonable accommodations do not eliminate this risk, that individual is not “otherwise qualified.” As the United States Supreme Court stated in Arline, 480 U.S. 273 (1987): “A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk” (p. 288). The Court further noted that decisions on these matters must be grounded in findings of fact “based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm” (p. 288). See also Doe v. Dekalb County School District, 145 F.3d 1441 (11th Cir. 1998), holding that school officials may transfer a teacher from one work assignment to another, if findings of fact indicate there is a significant risk of transmitting a serious disease, and that reasonable accommodations will not eliminate this risk. In Doe, school officials sought to transfer an HIV-positive teacher from his assignment in a “psychoeducation” classroom for students with the most severe behavioral problems, to an “interrelated” classroom for students with mild disorders. School officials were concerned that the combative environment of the psychoeducation classroom could result in an accidental transmission of the virus through contact with infected blood or other body fluids. The teacher asserted that the transfer violated the Americans with Disabilities Act (ADA) and obtained a permanent injunction from the U.S. District Court for the Northern District of Georgia barring the transfer. School officials appealed to the U.S. Court of Appeals for the Eleventh Circuit. Concerning the potential risks of assigning an HIV-positive teacher in the psychoeducation classroom, the court noted that “these children frequently engage in acts of violence such as biting, hitting, scratching, and kicking. Some children also attempt to bring dangerous items such as razors to school or to attack their classmates or teachers with objects such as pencils. Because of these potential dangers, psychoeducation teachers must be able to physically restrain their pupils; for example, a psychoeducation teacher may have to ‘basket hold’ several students each day. Often, these confrontations result in injuries to teachers. Although the number of scrapes and bruises suffered by teachers is unclear, psychoeducation teachers commonly file workman’s compensation claims for significant injuries, and, at least once, a teacher has suffered a severe bite that drew blood and required medical attention” (p. 1444). The U.S. Court of Appeals for the Eleventh Circuit vacated the trial court’s injunction barring school officials from transferring the teacher and remanded the case for further factual findings, to determine whether the teacher was otherwise qualified for an assignment in the psychoeducation classroom, consistent with the United States Supreme Court’s test in Arline.

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Employers may also lawfully decline to hire persons with disabilities that would make the work environment dangerous to their own health. In Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002), the United States Supreme Court held that an EEOC regulation authorizing employers to refuse to hire an applicant because his performance on the job would endanger his own health did not violate the ADA. In this case, Echazabal had a liver condition that doctors suggested would be further aggravated by exposure to the toxins he would encounter working in an oil refinery. The Court upheld the right of the employer to refuse to hire Echazabal for this position. Could a school district refuse to hire a teacher with a stress-related condition if doctors suggested that the stress of managing a classroom would worsen the teacher’s stress-related condition?

A visually disabled and hearing-impaired teacher’s discharge was upheld by a state supreme court after substantial evidence showed that the disability affected his performance. The teacher experienced problems with student discipline, exhibited deficient professional preparation, failed to establish appropriate educational objectives, and generally jeopardized the welfare and safety of the students in his charge. See Clark v. Shoreline School District No. 412, 720 P.2d 793 (Wash. 1986). According to the court in Gonzalez v. California State Personnel Board, 39 Cal. Rptr.2d 282 (Cal. App. 3d Dist. 1995), handicapped persons are not entitled to any special protections in employment and may be disciplined or fired for misconduct that is not solely a result of their disability.

III. THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (ADA) of 1990 is considered by many to be the most sweeping antidiscrimination law since the Civil Rights Act of 1964. Although Section 504 protected handicapped persons from discrimination in institutions receiving federal funds, individuals with disabilities remained unprotected in many other important areas of life. Congress passed the ADA to provide protections for individuals with disabilities in employment, public accommodations, telecommunications, and other areas. Many provisions in the ADA are similar to Section 504 provisions, but provide broader coverage. Because passage of the ADA was based on Congress’s power to enforce the Fourteenth Amendment and to regulate interstate commerce, the ADA prohibits discrimination against individuals with disabilities in both the public and private sectors, regardless of whether any federal funds are received.

Title II of the ADA prohibits discrimination against individuals with disabilities in all state and local government programs, including public schools. Similar to Section 504, Title II of the ADA declares that:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (2010).

The ADA prohibits discrimination based on a disability, and requires modifications for accessibility and other reasonable accommodations for individuals with disabilities. Although the ADA provided significant new protections for individuals with disabilities, especially in the private sector, the impact of the ADA in public schools was less dramatic. Discrimination against handicapped persons in schools receiving federal funds was already prohibited by Section 504.

Nonetheless, there are some situations in which the ADA impacts the operation of schools. For example, schools are required to make public accommodations such as athletic stadiums, auditoriums, and other facilities barrier-free for individuals with disabilities attending school events. Further, all new school construction must comply with barrier-free design requirements mandated by the ADA.

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