Transcript Civil Rights Issues Impacting Students with Disabilities

Jennifer Mauskapf
[email protected]
Brustein & Manasevit, PLLC
Spring 2012 Forum
 Enforcement Entities
 Civil Rights Laws and Disability
Sec. 504
ADA Title II & III
 Recent Civil Rights Issues
Bullying
Accessible/Emerging Technology
Hidden Disabilities
Service Animals
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•US Dept. of Education, Office for Civil Rights (OCR)
•US Dept. of Justice, Civil Rights Division (DOJ CRD)
Department of Education, Office for Civil Rights
Mission: “To ensure equal access to education
and to promote educational excellence
throughout the nation through vigorous
enforcement of civil rights.”
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Title VI of the Civil Rights Act of 1964
Title IX of the Education Amendments of
1972
Age Discrimination Act of 1975
Section 504 of the Rehabilitation Act of 1973
Title II of the Americans With Disabilities Act of
1990
2002 Boys Scouts of America Equal Access
Act
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Carries out mission through:
 Complaint Investigation and Resolution
 Proactive Enforcement: Compliance Reviews
 Monitoring of Resolution Agreements
 Technical Assistance
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Disability complaints comprised half of the
complaints filed in FYs 06-08
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Washington, DC Headquarters
Two Enforcement Directors
12 Enforcement Offices
Department of Justice, Civil Rights Division
 Mission is to uphold the civil and
constitutional rights of all Americans,
particularly some of the most vulnerable
members of our society
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 Enforces a broader range of statutes
including:
The Civil Rights Act of 1965
Title III of The Americans with Disabilities Act of
1990
Sections 504 and 508 of the Rehabilitation Act of
1973
 May enforce IDEA and Title II of the ADA
upon referral from other governmental
agencies
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 Headquarters in Washington, D.C.
 Division is made up of ten sections including the
Educational Opportunities and Disability Rights
sections
 Disability Rights Section Activities:
 Enforcement
 Certification
 Negotiated Rulemaking
 Coordination
 Technical Assistance
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•Section 504 of the Rehabilitation Act
•ADA Titles II & III
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Any individual who:
 (1) has a physical or mental impairment that substantially limits
one or more major life activities;
 (2) has a record of such impairment; or,
 (3) is regarded as having such impairment
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Major life activities include walking, seeing, hearing,
speaking, breathing, learning, working, caring for oneself,
and performing manual tasks
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Intent is to prevent any form of discrimination against
individuals with disabilities who are otherwise qualified.
 Individual must be qualified for the program, service, or job
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SECTION 504
Applies to entities that
receive federal funds
 Pre-requisite to receipt of
federal funds
 Creates affirmative
obligation on covered
educational institutions,
including the requirement
that necessary supports,
such as accommodations, be
provided to ensure access
 34 C.F.R., Part 104
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ADA
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Applies to virtually every
entity except churches and
private clubs
Title II (28 CFR Part 35)
 Applies to public entities,
including public schools
 Covers access to all programs
and services offered by the
entity, including physical access
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Title III (28 CFR Part 36)
 Applies to public
accommodations, including
private universities
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SECTION 504 STUDENTS
Students with Physical or
Mental Impairment
Students with Record of
Physical or Mental
Impairment
Students Regarded as
Having Physical or
Mental Impairment
IDEA Students
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A student must meet the academic and
technical standards requisite for admission or
participation without regard to their disability
in order to be a “qualified” individual
Postsecondary institutions are not required to
identify students with disabilities
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May not refuse to allow a person with a disability to
participate in a service, program, or activity simply
because the person has a disability
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Must provide integrated programs and services
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Must eliminate unnecessary eligibility standards
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Prohibits requirements that tend to screen out
individuals with disabilities
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May not place special charges on individuals with
disabilities
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Programs must be readily accessible and usable by
individuals with disabilities
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Must furnish auxiliary aids and services when
necessary
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BOTTOM LINE: Requires reasonable modifications
unless a fundamental alteration or undue burden in
the program would result
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Remove architectural and structural communication
barriers or provide readily achievable alternative
measures
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Provide equivalent transportation services
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Maintain accessible features of facilities and equipment
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Design and construct new facilities and alterations in
accordance with the Americans with Disabilities Act
Accessibility Guidelines
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Factors to consider:
 Nature and cost of the particular action
 Overall financial resources available to fund the
specific program in question and effect of
expenditure on the resources of the program
 Overall financial resources of the school
 Size of the school system
 Accommodation at issue and how it relates to the
program as a whole
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Determination must be made by the head of
the public entity or designee
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Must be accompanied by a written statement
of the reasons for reaching that conclusion
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Determination must be based on all
resources available for use in the program
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October 26, 2010 OCR Dear Colleague Letter
Bullying behavior may cross the line to become
“disability harassment”
 Strong Anti-Bullying Campaign
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 White House Conference on Bullying Prevention
 Anti-bullying website (www.stopbullying.gov) now
includes a section on Special Considerations for Youth with
Disabilities and Special Health Needs
 Dec. 2011 – DOJ Office of Juvenile Justice and Delinquency
Prevention (OJJDP) released Bullying in Schools: An
Overview, the first of five planned bulletins examining
bullying in schools and support schools can provide
bullying victims.
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Private schools initially refusing to accept
students with autism or other special conditions
or need
 Compliance Agreements
▪ Montessori Academy in Baldwin Park, CA
▪ Beach Babies Learning Center in Old Saybrook, CT
 Consent Decree: US v. Nobel Learning Communities
 Complaints
▪ SC child care and after-school center
▪ California swim school
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NOTE: Charter Schools
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Application Process Inaccessible
 Atlanta’s John Marshall Law School
 Law School Admission Council
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Examination Accommodations
 Law School Admission Test
 National Board of Medical Examiners
 NJ Complaint
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OCR Guidance
 June 29, 2010 Dear Colleague Letter stating that colleges
and universities cannot use inaccessible technology where
no reasonable accommodation or modification exists or is
unavailable
 May 26, 2011 FAQ discussing the application of the equal
access requirements of the ADA and Section 504 to the
use of emerging technology
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University of Virginia Darden School of Business
 Use of Kindles denied students equal access to the
University’s programs, activities and effective
communication in violation of Section 504 and Title II of
the ADA
 Similar agreements with other postsecondary schools
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Transportation
 Ensuring equal access to transportation services for
students with disabilities
▪ Chicago Pubic Schools compliance review
▪ Alabama State Department of Education
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Physical accessibility of facilities
 Adoption of the 2010 ADA Standards for Accessible
Design, effective May 2011, mandatory May 2012
 OCR Compliance Reviews:
▪ Montana Tech of the University of Montana
▪ University of Montana, Helena
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Physical or mental impairments not “readily
apparent to others”
Students with hidden disabilities are afforded
the same protection under Section 504 and
the ADA as other students
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Gloucester County VA Public Schools
 School found student with serious peanut allergy not
to have a qualified disability and therefore not eligible
for 504 protection
 OCR intervened in decision due to “exceptional
circumstances”
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Mystic Valley Regional Charter School
 State Hearing Officer decision required school to ban
all peanut products from child’s classroom due to life
threatening allergy
 School failed to make undue hardship/burden
argument
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Definition of service animal was changed
effective March 15, 2011; now limited to dogs
An animal that meets the definition of
“service animal” can be a reasonable
accommodation
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HUD v. University of Nebraska at Kearny - Fair
Housing Act lawsuit regarding dog in
university-owned apartment to support
student with depression and anxiety
Bakersfield City School District - OCR found
that a school district violated the ADA and
Section 504 by excluding dog without proper
procedures for review
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United States Department of Education Office of
Civil Rights
http://www2.ed.gov/about/offices/list/ocr/index.html
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United States Department of Justice Civil Rights
Division
http://www.justice.gov/crt
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Office for Special Education Programs
http://www2.ed.gov/about/offices/list/osers/osep/index.html
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Department of Education Anti-Bullying Website
http://www.stopbullying.gov/at-risk/groups/specialneeds/index.html
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first consulting legal counsel familiar with your particular
circumstances.
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