December 1999 ~ Volume 13, Issue 4

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In this issue:

Fourth Circuit Ruling Expands Potential for Liability Under ADA..............................1

Sixth Circuit Again Rejects Request for Discrete Trial Training..................................1

A School District Is Not Required to Seek An Override of Refusal of Consent, Seventh Circuit Rules..............................................................................................................................2

FAQ's ...........................................................................................................................2

Parent Access to Ed.Records........................................................................................6

Counting Partial Susp. Days........................................................................................6

Fourth Circuit Ruling Expands Potential for Liability Under ADA

The Fourth Circuit has issued a ruling that could significantly expand school district liability under Title II of the ADA, in Baird v. Rose, 31 IDELR 105 (4th Cir., 1999).

The student was in seventh grade and in regular education. She frequently missed school due to sinus infections. She auditioned for and was accepted into "show choir," which was a credit class that included public performances, despite concerns expressed by the instructor regarding her frequent absences.

In January, the student auditioned for a lead role in the spring play. Her choir instructor, who was responsible for assigning roles, advised her that she would not be considered because of her frequent absences.

The student then attempted suicide. She was diagnosed as severely depressed and placed on a treatment plan. Her mother informed the school of the diagnosis and gave permission to inform her teachers. When the student returned to school, the choir instructor announced to the entire class that the student would not be permitted to participate in the next performance.

Her mother asked the instructor to allow her to show that she knew the material and to participate. The instructor refused, stating that persons who suffer from depression cannot be counted on.

Her family doctor and psychologist submitted letters to the principal stating that she was fit to perform and it could be detrimental to her mental health to be denied the opportunity. Her mother contacted the principal and asked that she be allowed to show that she knew the material. Instead the principal informed the instructor that she must either uniformly enforce her written absence policy, which had not been enforced, or permit all students to perform.

The instructor then announced to her class that she was being forced to adhere to her strict absence policy and, as a result, not only the student but also three other students with "legitimate" absences would not be allowed to perform. Following this, the student's symptoms significantly increased and her grades fell dramatically.

The student and her parent brought suit against the instructor, the principal and the school board, alleging discrimination on the basis of the disability of depression in violation of Title II of the ADA. The federal district court granted defendant's motion to dismiss, finding that the denial of participation was not based solely, if at all, on her disability but rather on the policy on absenteeism.

On appeal, the issue was whether, under Title II, discrimination must be solely on the basis of the disability. In a case involving claims under both the ADA and § 504, the Fourth Circuit had previously held that the answer was "yes." In this case, the disability was alleged to be a factor but the parent conceded it was not the sole factor.

Under § 504, discrimination must be "solely by reason of . . . disability," while the ADA prohibits discrimination "by reason of such disability." The Court stated that the two acts generally impose the same requirements and are to be construed consistently when possible, but differences in statutory language may dictate different interpretations.

Despite its own prior decision, the Court ruled that the ADA does not impose a "solely because of" standard and held that a violation of the ADA was stated if discrimination on the basis of disability was a motivating factor in the action. The Court qualified its ruling by stating that damages could not be recovered if the same action would have been taken without the motivating factor (e.g., even if disability discrimination was a motivation, the student would have been denied participation in any event because of absences), but a court could still award declaratory and injunctive relief and attorney fees. The Court also ruled that claims under Title II of the ADA can be brought only against public entities and not against private individuals and affirmed the dismissal of the claims against the instructor and the principal.

Implications:

Federal courts, including the Sixth Circuit in Sandison v. Michigan High School Athletic Assn., 64 F3d 1026 (6th Cir., 1995), have almost unanimously held that the elements of a § 504 claim and a claim under Title II of the ADA are the same and that to recover under Title II, a plaintiff must show discrimination "solely by reason of . . . disability." The decision in Sandison, however, simply recites this standard without any analysis, as had the Fourth Circuit's prior decision.

This decision actually analyzes differences in language between the two statutes and, based on that analysis, conclude that the standards are different. Obviously, requiring that disability be a motivating factor in alleged discrimination rather than the sole basis establishes a significantly lower threshold for claims. At present Sandison remains the controlling precedent in the Sixth Circuit. Whether the Sixth Circuit will ultimately also adopt the Fourth Circuit's interpretation remains to be seen but a Sixth Circuit panel could easily decline to follow Sandison.

Also of interest in the decision is the Fourth Circuit's disposition of the district's contention that it had applied a neutral rule on absences to disabled and nondisabled students alike. Normally, application of a neutral rule would not constitute discrimination. However, the Court stated that application of a neutral rule does not excuse discrimination when the rule would not have been enforced but for the discrimination. The Court noted that in this case the neutral rule was not invoked until after the instructor had already excluded the student based on her disability. Thus, the student was actually excluded because of her disability rather than application of the neutral rule.

Sixth Circuit Again Rejects Request For Discrete Trial Training

In a second case from Michigan, the Sixth Circuit has again upheld a school district's proposed placement and rejected a parent request for intensive discrete trial training (DTT) in Dong v. Bd. of Ed. of Rochester Comm. Schs., _____ IDELR _____ (6th Cir., 1999). [For a summary of the first decision, Renner v. Bd. of Ed. of Ann Arbor Pub. Schs., see OP News, August 1999.]

In November, 1994, at age three the student was evaluated and placed in a special education early intervention program. In May, 1995, an IEP placed her in a pre-primary impaired classroom. She was then evaluated for autism. In October, 1995, an IEPC found her autistic impaired and placed her in an autistic impaired program for 13 hours a week. The parents supplemented this program with in-home DTT, initially for 10 hours a week. By May, 1996, they were providing 20 hours a week of DTT and speech therapy.

At the May, 1996 IEPC, the parents requested more "one-to-one" instruction in the school program. The IEPC placed the student in a 27.5 hours per week TEACCH program with 9.5-10 hours of individualized instruction. The parents then sent a letter to the district requesting 40 hours per week of DTT and asking for a due process hearing. The parents withdrew the student from school for the 1996-1997 school year and provided a 30-40 hour home-based DTT program.

The hearing officer found that the district had complied with procedural requirements and its proposed IEP offered FAPE. The state review officer affirmed. The federal district court granted summary judgment to the school district.

On appeal, the parents contended that entry of summary judgment was improper because the court decided disputed issues of fact without a trial. The Sixth Circuit held, however, that because the parties did not offer additional evidence and the district court properly reviewed the administrative record, entry of judgment was proper. The Court observed that disagreement with the court's conclusions did not constitute a factual dispute. The Sixth Circuit also rejected the parents' "novel argument" that Michigan's maximum potential standard shifted the burden of proof to the district, stating that, regardless of the standard, the burden of proof is on the party challenging the IEP.

The Sixth Circuit found that the IEP provided FAPE and rejected all of the parents' procedural and substantive arguments. The parents claimed the placement decision was not made by "persons knowledgeable" because their experts were not invited to the IEP. The Court rejected the contention that the IEP must include an expert in the parents' preferred teaching method and found district staff were well qualified in the area of autism treatments.

The Court rejected the claim that the IEP was a significant change in placement (from 13 to 27.5 hours) requiring a comprehensive evaluation because going from a half-day to full-day program is typical when a child turns five and, in any event, the disagreement was over "method" and further evaluation would not have altered anyone's view. The Court also rejected the claim that the district had not permitted parental participation because it did not reconvene the IEPC after it received the parents' written request for 30-40 hours per week of DTT. The parents had attended the IEPC and the district had considered their request for more one-on-one instruction.

Substantively, the parents contended the IEP provided a "standard" program that did not meet the student's unique needs. The Court found that the case involved "competing methodologies" and that the district's program was designed for autistic students, provided a staff-student ratio of one to two, and addressed the student's individual needs. It observed that, in Renner, it had found the DTT program was the "standard" program not geared to the specific child. Finally, the Sixth Circuit found that both the TEACCH and DTT programs were designed to maximize the student's potential but the TEACCH program better met LRE concerns.

Implications:

The Sixth Circuit clearly views TEACCH and DTT as competing methodologies. If a hearing dispute salts down to one of methodology only, it is virtually a "truism" that the district will prevail. The critical consideration in a DTT or "Lovaas" case will be whether the district has complied with procedural requirements.

Parent input into the IEP must be sought and considered. Staff participating in the IEP need to be knowledgeable about the child and the various approaches to teaching autistic children, including DTT. If they are not, someone who is should be invited. Any additional needs of the child outside the autistic impairment must be addressed. Indicators that the IEP Team identified and programmed for the child's individual needs are key to defending the IEP. These include goals and objectives developed from good baseline data, knowledgeable staff prepping for IEP placement, program and service recommendations by "matrixing" options (e.g., analyzing whether progress on goals and objectives will require a group/social context, individual instruction and/or both, and visualizing how goals and objectives could be addressed across the course of a day through various combinations of programs and services).

A School District Is Not Required to Seek An Override of Refusal of Consent, Seventh Circuit Rules

A school district's child find obligation does not require the district to seek to override a parental refusal of consent to evaluate, the Seventh Circuit has ruled in P.J. v. Eagle-Union Comm. Sch. Corp., 31 IDELR 108 (7th Cir., 1999).

The student transferred to the school district from a private school in a different community at the beginning of eighth grade. He earned poor grades and did not interact well with other students. The district requested permission to evaluate. The parent initially granted but then revoked consent. The parent also refused to share medical records but a pediatric neurologist informed the district that the student was "not learning disabled." The district then implemented a general education intervention plan.

In ninth grade, the district contacted the parent about evaluation but she again refused. The student made the honor roll, developed friendships and played in the freshman basketball team.

In tenth grade, he was cut from the junior varsity basketball team. He then started playing basketball during the lunch period to impress the coach. As a result, he was repeatedly tardy for his geometry class. After the sixth tardy, he was withdrawn from the class in accordance with school policy. The parent then claimed the student had a disability, consented to evaluation and agreed to provide medical records. Three days later, she refused to sign the consent form or provide records.

The parent then requested a due process hearing, alleging the district failed to identify the student as in need of special education and that withdrawing him from geometry and cutting him from the basketball team violated his rights under IDEA and § 504. The hearing officer found that the district had not failed to identify the student or violated his rights under IDEA or § 504. An appeal panel affirmed and the federal district court granted the school district summary judgment.

The Seventh Circuit affirmed, concluding that the evidence did not show that the district had failed to identify the student as in need of special education services in light of his improved performance in ninth grade, his neurologist's diagnosis and his parent's refusal of services. The parent also argued, however, that the district failed to identify because it had a responsibility under IDEA to pursue evaluation despite the parent's objection. The Seventh Circuit expressly rejected this contention, holding that because the applicable state regulation permitted but did not require the district to seek to override a refusal of consent, the district was not required to seek authority to evaluate the student.

The Seventh Circuit also found that the student had been withdrawn from geometry and cut from the basketball team for nondiscriminatory reasons and not because of disability and, in any event, had received any process due him under IDEA and § 504 in the administrative hearing. Finally, the Court ruled that it was not an abuse of discretion for the district court to refuse additional evidence when there were no procedural infirmities in the administrative proceedings.

Implications:

IDEA-97 final regulation 300.505(b) provides that, if parents refuse consent for an initial evaluation or for a reevaluation, the district may request a hearing to override the refusal, except to the extent inconsistent with state law relating to consent. The Analysis of the final regulations states, however, that if state law does not prohibit an override and the district believes an evaluation is necessary to provide FAPE, the district would have to "take appropriate action" (as specified in state law, or if state law is silent, due process or mediation). Although P.J. is a pre-IDEA-97 case, it squarely holds that a district is not required to seek an override unless the state regulation requires the district to seek an override. The P.J. decision is consistent with OSEP's position pre-IDEA-97, i.e., that override was permissive on initial evaluations where parents refused consent. See, for example, Letter to Conway, 17 EHLR 284 (OSEP 1990). The P.J. case and the fact that the federal statutory language on evaluation did not change in IDEA-97 (other than to add the requirement for parental consent for reevaluation) casts serious doubt on the position taken by OSEP in its Analysis.

The Court's ruling on the taking of additional evidence is also of note. The Court relied on an earlier decision finding that compliance with IDEA procedures assures that appropriate substantive content will be in the IEP, i.e., that all parties will have an opportunity to express their views and have them considered. Thus, the Court ruled that if there are no procedural infirmities, there is no reason to allow additional evidence on substantive claims. This approach serves as a deterrent to "sandbagging" and encourages the parties to "put their cards on the table" in the IEPT meeting and due process hearing.

Q & A:

Q. Does requiring an employee to undergo a mental or physical examination violate the ADA?

A. No, if the employee's apparent health problems are adversely affecting job performance. The ADA permits an employer to require a medical examination of an employee when it is "job-related and consistent with business necessity" and the examination is to determine whether the employee can "perform job related functions."

In Sullivan v. River Valley Sch. Dist., _____ F3d _____ (6th Cir., 1999), a long-time teacher began exhibiting strange and abusive behavior. The district ordered him to submit to mental and physical fitness-for-duty examinations and suspended him when he refused. He then brought suit, contending that the district regarded him as disabled and had taken an adverse employment action against him based on that perceived disability.

The Sixth Circuit ruled that requiring a medical examination to determine the cause of aberrant behavior affecting job performance does not equate to regarding the employee as disabled. Deteriorating job performance may be linked to motivation or other reasons unrelated to disability. Moreover, inability to perform a particular job is not a disability because it does not constitute a substantial limitation on the major life activity of working. In any event, on the facts of the case, the ADA specifically authorized an employer to require a medical examination.

Parent Access to Educational Records

1999 Public Act 272 adds § 1137a to the Revised School Code and requires schools to deny access to specified information in student records to parents who are subject to personal protection orders when certain conditions are met. Act 272 becomes effective on July 1, 2000.

Act 272 prohibits the school from disclosing the student's or other parent's address or telephone number or the other parent's employment address to a parent who is subject to a personal protection order, if:

• •the order prohibits the parent from having access to such information, and
• •the school has received a copy of the order.

FERPA regulation 99.4 permits a school to deny a parent access to educational records if a court order relating to divorce, separation, or custody specifically revokes access rights. As a court order contemplated by Act 272 normally would only issue when the parents are separated or divorced and the other parent has legal and physical custody of the child, Act 272 would appear to satisfy FERPA requirements.

Counting Partial Days of Suspension

We have heard rumors that some Michigan Department of Education (MDE) staff have indicated that partial days of suspension may or should be counted as partial days. We have discussed this issue with MDE. We have been advised that MDE is currently reviewing this issue and at present does not have an official position. We do not know when MDE will finish its review or whether it will issue a document setting forth a position.

In the absence of an official position, relying on statements of individual staff members has some risk. A hearing officer or judge may give such a statement little or no credence. Multiple partial day suspensions tend to be from the same classes. With respect to those classes, the effect on the student is the same as a full-day suspension. For that reason, the safer approach is to count a partial day of suspension as a day. In addition, even if permissible, counting partial days as partial days makes keeping accurate counts much more difficult and greatly increases the chance that the district will inadvertently exceed 10 days without complying with IDEA requirements.