Transcript Civil Rights Issues Impacting Students with Disabilities

CIVIL RIGHTS
ISSUES IMPACTING
STUDENTS WITH
DISABILITIES
Romie Barriere
[email protected]
Jennifer Mauskapf
[email protected]
Brustein & Manasevit, PLLC
Fall Forum 2011
OVERVIEW

The Law
 Sec.
504
 ADA Title II & III
Enforcement
 Recent Civil Rights Issues

 Bullying
 Accessible/Emerging
Technology
 Hidden
Disabilities
 Service Animals
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THE LAW
SECTION 504 OF THE REHABILITATION ACT OF 1973

34 C.F.R., Part 104

Enforced by ED OCR and DOJ Civil Rights Division

“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.”
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WHO IS COVERED?

Section 504
 Any
person 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
 Major life activities include walking, seeing,
hearing, speaking, breathing, learning, working,
caring for oneself, and performing manual tasks
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SECTION 504 IN POSTSECONDARY SETTINGS
For postsecondary education programs 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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AMERICANS WITH DISABILITIES ACT (ADA)

Who is Covered?
 Any
individual with a disability who: (1) has a
physical or mental impairment that substantially
limits one or more major life activities; or (2) has a
record of such impairment; or (3) is regarded as
having such an impairment
 Individual must be qualified for the program,
service, or job
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IDEA VS. 504
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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TITLE II OF THE ADA, 28 CFR PART 35
Enforced by OCR, DOJ by referral
 Prohibits discrimination on the basis of
disability by public entities, including public
schools
 Covers access to all programs and services
offered by the entity, including physical access

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STATE AND LOCAL GOVERNMENTS
 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
 Must provide integrated programs and services
 Must eliminate unnecessary eligibility standards
 Prohibits requirements that tend to screen out
individuals with disabilities
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STATE AND LOCAL GOVERNMENTS CONT.
 Requires
reasonable modifications unless a
fundamental alteration in the program would
result
 Must furnish auxiliary aids and services
when necessary
 May not place special charges on individuals
with disabilities
 Programs must be readily accessible and
usable by individuals with disabilities
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TITLE II: FUNDAMENTAL ALTERATION OR UNDUE BURDEN
Determination must be made by the head of
the public entity or designee
 Must be accompanied by a written statement of
the reasons for reaching that conclusion
 Determination must be based on all resources
available for use in the program

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TITLE III OF THE ADA, 28 CFR PART 36
Enforced by DOJ Civil Rights Division
 Applies to public accommodations, including
private universities

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PUBLIC ACCOMMODATIONS MUST…
 Provide
goods and services in an integrated
setting
 Eliminate unnecessary eligibility standards or
rules
 Make reasonable modifications unless a
fundamental alteration would result
 Furnish auxiliary aids when necessary, unless
an undue burden or fundamental alteration
would result
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PUBLIC ACCOMMODATIONS MUST (CONT.)
 Remove
architectural and structural
communication barriers or provide readily
achievable alternative measures
 Provide equivalent transportation services
 Maintain accessible features of facilities and
equipment
 Design and construct new facilities and
alterations in accordance with the Americans
with Disabilities Act Accessibility Guidelines
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TITLE III: FUNDAMENTAL ALTERATION OR UNDUE BURDEN

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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ENFORCEMENT
OFFICE FOR CIVIL RIGHTS (OCR)
Department of Education, Office for Civil Rights
 Mission: “To ensure equal access to education
and to promote education excellence
throughout the nation through vigorous
enforcement of civil rights.”
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OCR
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 Disability Act of
1990
 2002 Boys Scouts of America Equal Access Act

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OCR
Headquartered in Washington, D.C. with 12
regional offices
 Carries out mission through:

 Complaint
Investigation and Resolution
 Proactive Enforcement: Compliance Reviews
 Monitoring of Resolution Agreements
 Technical Assistance

Disability complaints comprised half of the
complaints filed in FYs 06-08
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US DEPARTMENT OF JUSTICE (DOJ)
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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DOJ CIVIL RIGHTS DIVISION

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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DOJ CIVIL RIGHTS DIVISION
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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RECENT CIVIL RIGHTS
ISSUES IMPACTING
STUDENTS WITH
DISABILITIES
BULLYING
October 26, 2010 OCR Dear Colleague Letter
 Bullying behavior may cross the line to become
“disability harassment”
 White House Conference on Bullying Prevention
 www.stopbullying.gov

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ACCESSIBLE/EMERGING TECHNOLOGY

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
University of Virginia Darden School of Business

Use of Kindles denied students equal access to the
University’s programs and activities and effective
communication in violation of Section 504 and Title II of the
ADA
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PHYSICAL ACCESS

Transportation

Ensuring equal access to transportation services for
students with disabilities
 Chicago
Pubic Schools compliance review
 Alabama Education Department

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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HIDDEN DISABILITIES
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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HIDDEN DISABILITIES

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”


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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SERVICE ANIMALS
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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SERVICE ANIMALS
HUD v. University of Nebraska at Kearny - Fair
Housing Act lawsuit re: 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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RESOURCES

United States Department of Education Office of
Civil Rights


United States Department of Justice Civil Rights
Division


http://www.justice.gov/crt
Office for Special Education Programs


http://www2.ed.gov/about/offices/list/ocr/index.html
http://www2.ed.gov/about/offices/list/osers/osep/inde
x.html
Department of Education Anti-Bullying Website

www.stopbullying.gov
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QUESTIONS?
LEGAL DISCLAIMER
This presentation is intended solely to provide general information
and does not constitute legal advice or a legal service. This
presentation does not create a client-lawyer relationship with
Brustein & Manasevit, PLLC and, therefore, carries none of the
protections under the D.C. Rules of Professional
Conduct. Attendance at this presentation, a later review of any
printed or electronic materials, or any follow-up questions or
communications arising out of this presentation with any attorney
at Brustein & Manasevit, PLLC does not create an attorney-client
relationship with Brustein & Manasevit, PLLC. You should not
take any action based upon any information in this presentation
without first consulting legal counsel familiar with your particular
circumstances.
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