Civil Rights Issues Impacting Students with Disabilities

1. Civil Rights Issues Impacting Students with Disabilities Jennifer Mauskapf jmauskapf@bruman.com Brustein & Manasevit, PLLC Spring 2012 Forum

2. Overview • 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

3. Enforcement Agencies US Dept. of Education, Office for Civil Rights (OCR) US Dept. of Justice, Civil Rights Division (DOJ CRD)

4. Office for Civil Rights (OCR) 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.”

5. 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 Disabilities Act of 1990 • 2002 Boys Scouts of America Equal Access Act

6. OCR • 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

7. OCR Organization • Washington, DC Headquarters • Two Enforcement Directors • 12 Enforcement Offices

8. 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

9. 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

10. 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

11. CIVIL RIGHTS LAWS Section 504 of the Rehabilitation Act ADA Titles II & III

12. Who is covered? • 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 • Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks • 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

13. Comparing Section 504 and the ADA Section 504 ADA 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 Title III (28 CFR Part 36) Applies to public accommodations, including private universities • 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

14. IDEA vs. 504 SECTION 504 STUDENTS IDEA Students

15. Section 504 Implications in Postsecondary Settings • 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

16. Entities Receiving Federal Funds (E.g., 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

17. Entities Receiving Federal Funds (cont.) • May not place special charges on individuals with disabilities • Programs must be readily accessible and usable by individuals with disabilities • Must furnish auxiliary aids and services when necessary • BOTTOM LINE: Requires reasonable modifications unless a fundamental alteration or undue burden in the program would result

18. Entities Receiving Federal Funds (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

19. Standard for 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

20. Determination of 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

21. RECENT CIVIL RIGHTS ISSUES IMPACTING STUDENTS WITH DISABILITIES

22. Bullying • October 26, 2010 OCR Dear Colleague Letter • Bullying behavior may cross the line to become “disability harassment” • Strong Anti-Bullying Campaign • 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.

23. Limiting Enrollment Based on Disability • 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 • NOTE: Charter Schools

24. Limiting Enrollment Based on Disability—Postsecondary • Application Process Inaccessible • Atlanta’s John Marshall Law School • Law School Admission Council • Examination Accommodations • Law School Admission Test • National Board of Medical Examiners • NJ Complaint

25. 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, activities and effective communication in violation of Section 504 and Title II of the ADA • Similar agreements with other postsecondary schools

26. Physical Access • Transportation • Ensuring equal access to transportation services for students with disabilities • Chicago Pubic Schools compliance review • Alabama State Department of Education • 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

27. 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

28. 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

29. 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

30. Service Animals • 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

31. Resources • United States Department of Education Office of Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html • 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/osers/osep/index.html • Department of Education Anti-Bullying Website http://www.stopbullying.gov/at-risk/groups/special-needs/index.html

32. Questions?

33. 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.