§ 504 Discrimination
THE STUDENT STATED A VALID § 504 CLAIM BASED ON PEER HARASSMENT
Case citation: M.J. v. Marion ISD, 113 LRP 19278 (S.D. Tex. 2013).
Summary: M.J. was a student in the Marion Independent School District who was diagnosed with bipolar disorder and Attention Deficit Hyperactivity Disorder (ADHD). His disabilities caused him to have panic attacks, paranoia, and hallucinations. In a lawsuit filed against the school district, M.J. and his parents alleged that M.J. was the target of verbal and physical harassment and bullying between 2005 and 2009. The suit alleged that the district failed to remedy the harassment and the abuse caused M.J. to become anxious, depressed, angry, and suicidal.
In March of 2010, another student, A.B., punched M.J. in the face, causing a fracture to his sinus. As a result, M.J. underwent surgery to remove bone fragments and a blood clot. Following this incident, the parents enrolled M.J. in a private school for the 2009-10 school year.
After an unsuccessful appeal under the appeal process set out in § 504 of the Rehabilitation Act of 1973, the parents filed for a due process hearing under the Individuals with Disabilities Education Act (IDEA). The parties entered into a settlement agreement regarding the parents’ IDEA claims, in which the parents released the district from any claims or suits arising under the IDEA. The parties also acknowledged that M.J. exhausted his administrative remedies under the IDEA “exclusively in connection with claims under Section 504 of the Rehabilitation Act of 1973 alleging disability based discrimination and/or disability based harassment,” but not with regard to any claim concerning M.J.’s right to a Free Appropriate Public Education (“FAPE”) under § 504 or the IDEA.
The parents later sued the district, the board president and the superintendent, raising claims under § 504 and for violations of M.J.’s Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. After the trial court dismissed claims against the board president and superintendent, the district sought judgment in its favor prior to trial on the remaining claims. At a hearing concerning the district’s motion, the plaintiffs voluntarily dismissed their § 1983 claim against MISD. Thus, the main issue before the court was whether the plaintiffs asserted a valid claim under § 504 based on the peer harassment and bullying alleged.
Ruling: As a matter of first impression, the trial court held that M.J. raised genuine issues of material fact and could pursue a claim for disability discrimination under § 504 based on peer harassment at school. Under § 504, “no otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, 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 . . .” Here, the suit alleged that the district violated M.J.’s rights under § 504 by failing to prevent or remedy the alleged harassment by M.J.’s peers. Recently, in Stewart v. Waco Independent School District, 711 F .3d 513, 519 (5th Cir. 2013), the Fifth Circuit discussed the viability of such a cause of action. However, it declined to decide whether the plaintiff’s theory of liability based on peer harassment was viable, finding that “[e]ven if [the plaintiff’s] Title IX-like theory of disability discrimination [was] actionable, she fail[ed] to plead facts sufficient to state such a claim.” [See Texas School Administrators’ Legal Digest, April 2013].
Thus, whether a school’s inadequate response to disability-based peer-on-peer harassment is actionable under § 504 was a matter of first impression in this circuit, according to the trial court. Citing cases from the Sixth Circuit, the trial court held that M.J. here could pursue such a claim. In order to do so, the plaintiffs had to prove that: (1) M.J. was an individual with a disability; (2) he was harassed because of his disability; (3) the harassment was so severe or pervasive that it altered the conditions of M.J.’s education and created an abusive educational environment; (4) the district knew about the harassment; and (5) the district reacted with deliberate indifference.
The trial court held that the plaintiffs had established a genuine issue for trial as to each element of their § 504 disability-based, peer-on-peer harassment claim. M.J. claimed to have repeatedly reported harassment by A.B. to his math lab teacher, and she apparently failed to take any action on some occasions. M.J. also claimed to have complained of the same harassment at a February 2009 ARD meeting, to no avail. There existed a fact question regarding whether A.B.’s harassment was motivated by M.J.’s disability, and whether the harassment was sufficiently severe and pervasive enough to impose liability on the school. The trial court, therefore, denied the district’s request for judgment prior to trial on the student’s § 504 claim alleging peer-on-peer harassment.
Things to Remember: Plaintiff has a long way to go to prevail in this case, but has successfully overcome the first hurdle, largely based on allegations of what occurred in a single class, and the response of a single teacher. If that becomes the standard for liability for the school district in these cases, you can expect a lot of lawsuits.
DID THE SCHOOL DISTRICT MEET ITS CHILD FIND OBLIGATIONS?
Case citation: Student v. Carrollton-Farmers Branch ISD, Dkt. No. 032-SE-1012 (Hearing Officer Mary Carolyn Carmichael, January 25, 2013).
Summary: The student attended school in the Carrollton-Farmers Branch Independent School District and was diagnosed with Attention Deficit Disorder (ADD)/Attention Deficit Hyperactivity Disorder (ADHD) by a private physician. The parent notified the district of the diagnosis and related medications in August 2011. At that time, the parent did not raise any concerns regarding autism or an emotional disturbance. The student exhibited academic progress during the 2011-12 school year, earning A’s and B’s and passing state assessments. The student also demonstrated either successful or exceptional performance of conduct expectations throughout the year, with only rare occasions of correction for classroom behavior.
On August 20, 2012, an advocate for the parent faxed a letter to the district requesting mediation. At the time, the district was unaware of any conflicts with the parent and it was the first contact that the parent’s advocate had with the district. The district, nevertheless, began the referral process and agreed to mediation. The parent informed district personnel that she was working with an advocate, discussed § 504, and discussed the desire for more services and accommodations for the student.
On August 28, 2012, the district held a meeting in response to the advocate’s request for mediation with the student’s principal, counselor, and teachers. The committee reviewed the student’s grades, previous teachers’ reports, and an e-mail from the parent reporting that the student had ADD and was currently taking medication dated August 28, 2012. After review, the committee determined that the student had no academic, behavioral, or social concerns that warranted a special education evaluation or intervention. Instead, the committee agreed to refer the student for a §504 evaluation due to the student’s diagnosis of ADD. The district provided the parent with Prior Written Notice (“PWN”) of its refusal to evaluate the student under the IDEA for special education services. On the same date, the district requested parental consent for a § 504 evaluation of the student and included a copy of § 504 procedural safeguards. The parent consented to the § 504 evaluation.
The parties participated in mediation on October 8, 2012, but could not reach agreement. The district sent notice by registered mail to the parent of a § 504 meeting, scheduled for October 15, 2012, with a copy of § 504 procedural safeguards. Even though the parent received the notice, the parent did not attend the § 504 meeting. The § 504 committee did not suspect a disability under the IDEA that resulted in a need for specially designed instruction, including autism, other health impairment, or emotional disturbance. As a result, the committee did not make a referral for special education but instead found the student eligible for § 504 services as a student with ADD, and developed an accommodation plan for the student. However, the parent never consented to § 504 services. As a result, the accommodations were not implemented.
Meanwhile the parent sought a private psychological evaluation of the student from a pediatric neuropsychologist. The neuropsychologist produced two versions of his written report. In the first version, he did not include any reference to autism as a suspected disability, a need for an autism evaluation, or indicate that the student needed special education services. Instead, the first version of the written report recommended accommodations that could be obtained through the § 504 committee. The evaluator later changed his written evaluation report at the request of the parent to include a recommendation for an autism evaluation and to remove the statement that the student could receive necessary accommodations through the § 504 committee.
The parent requested a due process hearing complaining about the district’s failure to properly evaluate and place the student. The parent was concerned that the student frequently made noises that annoyed other students rather than communicate with student’s peers with words. The parent claimed that the child did not like loud noises and places. The parent also was concerned that the student did not have friends, came home crying that no one would sit with the student at lunch, did not have play dates outside of school that were reciprocated, and exhibited difficulty with other extracurricular activities such as scouting and sports.
Ruling: The hearing officer ruled in favor of the district on each of the parent’s claims. The district properly concluded that the student was not eligible for special education services. The parties did not dispute the student’s ADD/ADHD diagnosis, but the parties disagreed as to whether the student qualified for special education and related services under the IDEA. The district demonstrated that the student made progress in all areas – academically, behaviorally, and socially – without the need for specially designed instruction.
The hearing officer observed that “not every struggling student with a disability requires an evaluation,” especially when the student demonstrates appropriate academic and social performance and does not exhibit a need for special education. Here, the record showed that the district did not have reason to suspect that the student required specially designed instruction because the student performed as a typical student academically, behaviorally, and socially within the general education setting with very few accommodations.
The parent relied upon a private evaluation to show that the student required special education evaluation for possible autism and required special education services. However, at the hearing, the evaluator admitted that he changed his written report at the request of the parent to include a suspicion of autism in a second version of his written report after concluding in his first version that there was no need for an autism evaluation or special education services. The report also did not include any input from the student’s teachers who had taught student an entire year, no observation of the student within the school setting, and no thorough review of school records that would have reflected the student’s successful functioning within the general education setting. As a result, the hearing officer did not find the private evaluation persuasive.
The record showed further that the district did not ignore the student’s ADD/ADHD diagnosis or the student’s classroom needs. Instead, the district’s teachers and administrators addressed student’s classroom performance and student remained successful in the general education setting. The district also offered accommodations and consultations with a behavioral specialist regarding the student’s school behaviors. Because the student did not need special education instruction in order to be successful and required no special education evaluation, the hearing officer concluded that the district did not violate the child find provisions of the IDEA.
The hearing officer also held that the district was not required to provide a functional behavioral assessment or behavior intervention plan because the student did not qualify for special education services under the IDEA. Further, because the student was not a student with a disability under the IDEA, the district was not obligated to provide a behavioral consult or an occupational therapy consult as part of a special education program and was not required to provide supplementary aids and services to the student. The student also was not entitled to counseling or social skills training under the IDEA. The student made progress with peer interactions in the general education program without additional counseling services or social skills training. The record also demonstrated that the district included the parent as a full participant in the decision-making process regarding the provision of a FAPE. Contrary to the parent’s contentions, the district did not propose or make any disciplinary change of placement for the student. As a general education student, the student remained subject to general disciplinary guidelines at student’s elementary school campus. The hearing officer ultimately denied all relief requested by the parent.
Things to Remember: This case provides an excellent illustration of how schools should respond to independent reports provided by the parent. It also provides a warning to independent experts about changing reports at parental request. The hearing officer noted that “I find it troubling, at best, that Petitioner’s expert made such a change.”
DID THE DELAY IN EVALUATING THE STUDENT DENY THE STUDENT FAPE?
Case citation: Student v. Dallas ISD, Dkt. No. 354-SE-0812 (Hearing Officer Sharon M. Ramage, March 7, 2013).
Summary: The student attended school in the Dallas Independent School District, but withdrew in 2010, and enrolled in another district. At that time, the second district conducted a full and individual evaluation (FIE) of the student but determined that the student did not meet eligibility criteria as a student with an intellectual disability or a learning disability.
In June of 2011, the student underwent testing for autism because the student had exhibited stereotypical behaviors consistent with autism, such as excessive and inappropriate fears, and difficulty in relating to peers. The student was diagnosed with Major Depressive Disorder, an Intellectual Disability, and Pervasive Developmental Disorder – NOS. This evaluation concluded that the student met the eligibility criteria for Developmental Disability Services as a person with an intellectual disability.
The student returned to the Dallas ISD during the 2011-12 school year. The parent requested a special education evaluation and the district referred the student to its § 504 Committee. The Committee requested information from the student’s teachers and scheduled a meeting for September 27, 2011, that was cancelled due to construction on campus. On October 18, 2011, the student’s physician submitted a § 504 Disability Report noting the student’s Major Depressive Disorder, PDD-NOS and intellectual disability diagnoses and recommending further “psychoeducational” testing to assure proper classroom placement. The Committee reviewed this, as well as other evaluation data in determining that the student qualified for § 504 accommodations. The initial § 504 meeting was not convened until November 2, 2011, due to campus construction and training conflicts. At the conclusion of the November 2, 2011 meeting, the § 504 Committee recommended that accommodations should be implemented for two weeks prior to initiating an FIE.
The school counselor and chairperson of the § 504 Committee made the referral for an FIE two weeks following the November 2, 2011 meeting, although she was aware that the parent had requested the evaluation prior to that date. The district used a software program for the initiation and referral of a special education evaluation. The information was entered into the system and then the referral was “locked” by the individual entering the referral. No evaluation would take place until the referral was “locked.” Once the referral was locked, a computer generated notice of evaluation for the student. According to the district’s diagnostician, she could not manually complete a consent form and did not have access to blank consent forms and claimed to be unable to initiate the referral until another staff person “locked” the referral by making a data entry into the computer.
Throughout the school year, the student exhibited emotional difficulties and reported instances of bullying at school. The school counselor and licensed specialist in school psychology developed a campus safety plan for the student. In April of 2012, the district completed an FIE for the student for a suspected intellectual disability, specific learning disability, emotional disturbance and autism. After completing the FIE, the student’s ARD Committee convened on April 20, 2012, and determined the student to be eligible for special education and related services under the categories of autism and emotional disturbance. The ARD Committee determined that the student should receive modified instruction in the general education classroom as well as inclusion support. The Committee approved goals and objectives in all core classes, as well as transition, social skills and counseling goals. The district assigned a Case Manager for the student and introduced the case manager to the parent. The ARD Committee also developed a Behavior Intervention Plan, targeting problematic behaviors identified in the FIE, specifically, student’s withdrawal from peers. Although the ARD Committee recommended counseling as a related service, it only recommended 180 minutes per year.
During the 2011-12 school year, the student was absent a lot, which the parent indicated was related to the student’s anxiety and depression. The student continued to report instances of being bullied while at school. Although the district investigated the bullying allegations and did not substantiate that bullying did in fact occur, the student’s perception that student was being bullied created anxiety at school to a degree that it interfered with student’s ability to remain in school.
At the beginning of the 2012-13 school year, the parent requested a transfer to a different school. The ARD Committee then convened on September 28, 2012 to discuss the placement, compensatory services, an independent educational evaluation (IEE) request, and grade placement issues. The ARD Committee approved the change in placement, compensatory services, and the parent’s request for an IEE and occupational therapy evaluation. The district explained the FIE to the parent and the parent’s advocate. The ARD Committee also increased the student’s counseling time to 60 minutes monthly and developed new counseling goals that addressed student’s symptoms of depression. The district agreed to provide 2400 minutes compensatory educational services in all core academic areas to be provided one-on-one by a special education teacher and 360 minutes compensatory counseling services. The ARD Committee determined that those were the services necessary to compensate the student for educational services lost during the Spring, 2011 semester due to the delay in the evaluation and development of the IEP. However, the district did not provide compensatory counseling services for the student because the parent refused the services. Instead, the parent indicated that the student received private counseling services. The parent requested a due process hearing claiming that the district denied the student FAPE because it did not timely evaluate the student or provide an appropriate placement.
Ruling: The hearing officer determined that the district denied the student FAPE when it failed to timely evaluate the student. However, following the evaluation, the district provided an appropriate program reasonably calculated to provide the student FAPE. The record showed that the parent requested an evaluation at the beginning of the 2011-12 school year. The parent delivered a note to the school and the student’s physician recommended an evaluation on October 18, 2011. The district argued that it was justified in delaying the evaluation because it relied on testing from another district. According to the hearing officer, however, the previous district only evaluated the student for a specific learning disability or intellectual disability. At a minimum, the district was on notice that an FIE was needed on October 18, 2011, the date of the physician’s § 504 report. The district unreasonably delayed the evaluation from the date the parent requested the evaluation on September 29, 2011 to April 8, 2012, when it obtained the parent’s consent. The procedural error resulted in a denial of a FAPE.
The parent also argued that the district failed to properly identify the student in the eligibility category of intellectual disability. The hearing officer disagreed, finding that the district properly identified the student in the categories of autism and emotional disturbance. The student did not meet the eligibility criteria for intellectual disability because student did not have significant deficits in adaptive behavior. In addition, the failure to identify the student in a particular category is a procedural error that did not result in a denial of a FAPE.
Contrary to the parent’s contentions, the district did not deny the parent meaningful participation in the development of the student’s educational program by failing to adequately explain the FIE and procedural safeguards to her and by failing to explain which staff and teachers would implement the student’s IEP. Although the parent had difficulties in understanding the student’s program and communicating with the district, the district took steps to communicate with the parent and included other family members, outside agency representatives, and an advocate, all of whom were persons with special knowledge and expertise regarding the child.
The parent next claimed that the district failed to develop appropriate IEP goals and objectives to meet the student’s academic and non-academic needs. The hearing officer agreed, in part, holding that, although the April 2012 IEP contained goals and objectives to meet the student’s academic needs, the counseling goals were vague and inappropriate. Following those problems, the district corrected the issues by providing new goals and objectives at the beginning of the 2012-13 school year. Because the district denied the student FAPE, the hearing officer ordered the district to provide the student with compensatory educational and counseling services.