Education Law Insights

NSBA to OCR: Standard for Addressing Requests for Technology by Students With a Communication Impairment is Off Key

Posted by EdLaw on April 10, 2015

Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).

If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.

The Tustin Decision 

In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA. (more…)

Don’t Miss Section 504 Warning Signs at Registration

Posted by Brian Crowley on August 23, 2012

Back to school is a busy time for school administrators, but don’t forget your Section 504 obligations. The following are tips to remember during student registration and the first weeks of school regarding Section 504 identification and eligibility:

  • Provide information about Section 504 to parents during the registration process and through the school district website, in addition to other systematic efforts to communicate the school district’s Section 504 policies and procedures to stakeholders. Include a summary of Section 504, the processes used to determine eligibility, and contact information for relevant school administrators.
  • Train administrators and staff about current standards for 504 eligibility so that warning signs are not missed. Importantly, under the definition of disability from the 2009 ADA Amendments Act, a student can be eligible under Section 504 even if the student’s disability does not impair learning. Simply because a student has good grades does not mean she is ineligible for Section 504. Look for other impacts of a disability, such as problems with behavior. Our firm issued a summary of the 2009 amendments and their impact on Section 504 that is a good starting point for a review.
  • Ask for documentation supporting the student’s claim that he or she has a covered impairment, but don’t demand a medical diagnosis. For those with Special Ed Connection access, the Houston Independent School District special education updates blog has a link (subscription required) to an article warning against requiring a medical diagnosis as a condition for assessing student 504 eligibility.
  • Watch for signs that a student is not responding to general education interventions and move toward Section 504 evaluation if necessary. Although it is appropriate to respond to student concerns with such interventions, persisting with them once they prove to be inadequate can spell trouble for the school district (subscription required).

Most if not all districts already have standard Section 504 forms which accurately comply with the 2009 changes to the ADA, the most recent legal update needed.  If your district has had usability issues with its forms, Franczek Radelet recently updated the standard forms to make them more user-friendly.  If you are interested in these newly formatted forms, e-mail me at jfw@franczek.com.

What About Private Schools?

As Nirvi Shah explained at On Special Education, the Department of Education takes the position that unless a private school receives federal financial assistance it is not subject to Section 504. Public schools should seek the advice of legal counsel if evaluation and/or services are sought by a student attending a private school, however, because the issue of whether such a student should receive services under Section 504 is still unsettled.