July, 2000 ~ Volume 13, Issue 11
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
Return to the Articles Index Return to the Issues Index
In this issue:
Sixth
Circuit Adopts Balancing Test in Section 504 and ADA Cases
When a Public Health Threat is Presented...................................................................1
Legislature Finally Amends Discipline Statutes............................................................1
Federal Court Dismisses Section 504 Claim, Finding No Bad Faith...........................2
FAQ's ...........................................................................................................................2
Legislature Creates Michigan Virtual High School......................................................4
Placing a student with hemophilia and hepatitis B who wanted to play on a school basketball team on Ahold@ status until the district could obtain medical direction and clearance did not violate '504 or the ADA, the Sixth Circuit ruled in Doe v. Woodford County Board of Education, 32 IDELR 174 (6th Cir, 2000).
The district had adopted a Ano cut@ policy for its ninth grade JV basketball team. Any ninth grade student wishing to play was automatically on the team. The student, who had hemophilia and hepatitis B, began practicing with the team. The coach was apparently unaware of his condition.
A few days later, the middle school principal, who was aware of his condition, observed him practicing and suggested to the coach that he check the student=s medical records to see if it was appropriate for him to play. The coach checked the records, which indicated he Ashould not engage in activities which would put him at increased risk for physical injury.@ The coach then met with the high school principal who instructed him to place the student on Ahold@ status and seek medical direction and clearance from his doctor. The coach informed the student he could not practice but offered to make him team manager.
The student=s mother then met with the coach and a school counselor. She agreed to provide a doctor=s statement that it would be safe for him to play. He returned to practice but was held out of certain drills. Later in the week, he was again removed from practice and asked about becoming team manager.
The parent then met with the coach, counselor, principal and head coach. School officials decided to place him on Ahold@ status until they received a doctor=s statement that it was appropriate for him to fully participate. They noted that he was not cut from the team. He simply could not fully participate in practice pending receipt of a doctor=s statement.
The coach then received a vague, general letter from the student=s doctor. Unsatisfied with the letter, he continued the Ahold@ status. Ten days later, the principal directed the coach to treat the student like all other players and allow him to practice.
In the interim, the student had decided to quit the team. The day after the principal issued his directive, the parent met with school officials to discuss how the situation had been handled and inform them of the student=s decision. Neither she nor the student were ever informed of the principal=s directive.
The parent then brought suit, alleging discrimination under '504 and the ADA. The federal district court granted summary judgment to the school district, dismissing all claims.
On appeal, the Sixth Circuit affirmed. To have a claim under '504 or the ADA, one must be an Aotherwise qualified@ disabled person who has been excluded from participation in or denied benefits under a program or activity because of the disability. A person is not Aotherwise qualified@ if his or her participation is a direct threat to the health and safety of others. Even though the student had participated on basketball teams in the past without incident and the district had a Ano cut@ policy, the Sixth Circuit found the district was attempting to determine whether the student posed a health and safety threat when it placed him on Ahold@ status. Thus, it was not liable for discrimination while doing so.
The Court stressed that a district cannot rely on stereotypes to determine if a disability poses a threat but Amust make individual assessments based on reasonable judgment,@ relying on current medical knowledge or objective evidence. The Court found that during the three-week Ahold@ period, the district was balancing the need to protect the public health with the student=s right to not be treated differently due to his disability. On these facts, the Court held that there was no violation of his rights under '504 or the ADA.
Implications:
This decision affords some protection to a district while it is determining whether a student or staff member=s participation in a particular activity poses a public health and safety threat. There must be a reasonable basis for finding that there is a question whether the person=s participation poses a threat. This requires that both the specific disability and the activity be examined. If there is, the person may be Aheld out@ of the activity for a reasonable period while the question is being answered.
A district must be careful not to prejudge the answer and must attempt to promptly get an answer from a qualified professional. Do not delay waiting for parents or the student=s doctor to respond. In this case, when the district did not get a satisfactory response from the student=s doctor, it went ahead with its own determination.
While the opinion itself only addresses the district=s decision-making process, it does recognize that there must be a balancing of the need to protect the public health and the rights of an individual disabled person. Ultimately, the district must determine that balance in making its decision. The district should be prepared to demonstrate that its decision was individualized and based on reasonable judgment.
Legislature Finally Amends Discipline Statutes
The Legislature passed two new statutes in 1999 mandating expulsion of students who physically assault other students or district staff or other adults or who verbally assault district staff or other adults or make bomb threats. Implementation issues arose almost immediately. Curative amendments were promised but then delayed. They have now been enacted.
The provision relating to physical assaults on other students ('1310) was amended to permit the school board to designate the superintendent, a building administrator or other school district official to act on behalf of the board and to permit a student to be suspended or expelled for up to 180 school days.
The section relating to physical and verbal assaults on staff and other adults and bomb threats ('1311a) was amended in several significant respects. The verbal assault and bomb threat provision previously required expulsion for up to 180 days. It has been amended to permit a student to be suspended or expelled Afor a period of time as determined in the discretion of the school board or its designee.@ Under the amendment, a district can permanently expel a student for a verbal assault or bomb threat if the school board finds that appropriate.
The section also established a reinstatement process for students expelled for physical assaults on staff or other adults identical to the process provided for students expelled for weapons. The section has been amended to also make the reinstatement process applicable to students permanently expelled for verbal assaults or bomb threats. Finally, as originally enacted, the section required the district to refer any student expelled under the section to the county department of social services or community mental health. The referral requirement is now limited to students permanently expelled.
The Legislature also amended a related section ('1310a) that requires districts to file with the superintendent of public instruction at least annually a report of incidents of crime occurring at school. As originally enacted, the district was required to provide a copy of this report to parents at least once each semester. As amended, the district must make a copy available (rather than provide) at least annually but the report must be disaggregated by school building. In addition, each school building must collect the information required for the report and keep it current on a weekly basis and provide the information, upon request, within 7 days.
Implications:
The amendments to the discipline provisions bring them in line with traditional practice. Students may be suspended or expelled and school boards can authorize administrators to impose the discipline. In addition, for truly serious verbal assaults or bomb threats, a school board may permanently expel and is no longer limited to a maximum of 180 days. None of the amendments address or alter the due process rights of children with disabilities.
The amendments to the reporting requirements are classic Agood news, bad news.@ Districts no longer need to actually provide the report to parents at least twice a year. On the other hand, instead of simply compiling a district-wide annual report, reports must now be kept on a building by building level, updated on a weekly basis and promptly provided to anyone requesting them. This significantly increases the potential for FERPA violations. Districts need to develop a process for compiling reports that minimizes the risk of accidental disclosure of personally identifiable student information.
Federal Court Dismisses Section 504 Claim, Finding No Bad Faith
A Federal District Court for the Western District of Michigan granted summary judgment in favor of a school district, finding that the district=s failure to identify a student as Section 504 eligible did not amount to Abad faith or gross misjudgment@ in Manning v. Marquette Area Public Schools, ____ IDELR _______, (WD MI, 2000).
The plaintiff, a 19 year old former student, filed a lawsuit alleging that the district violated '504 by failing to evaluate and identify him as disabled and by disciplining him for behaviors that were a manifestation of his disability. He also claimed that he had been denied procedural due process in violation of the Fourteenth Amendment and sought damages pursuant to Section 1983.
The plaintiff had been diagnosed as having ADHD as early as kindergarten. Throughout elementary school, it was managed through the use of Ritalin. In seventh grade, he was referred for evaluation for special education services. The evaluation concluded that he was not eligible for special education.
In 1995, he entered high school. He began exhibiting difficulties and was referred to a Astudent/teacher assistance team@ (STAT) regarding his inconsistent behavior, short attention span and lack of motivation. At the STAT meeting, in which the parent participated, it was determined that he was refusing to take his medication for ADHD. The team recommended that general education interventions be provided, including encouraging him to take his medication, and providing preferential seating and ongoing monitoring of his progress and grades. No referral was made for evaluation under Section 504 or IDEA.
He continued to do poorly. His progress reports reflected poor grades and noted that he was easily distracted and was missing assignments. His behavior also became increasingly inappropriate. No further STAT meetings were held, and the parent never requested any further action.
During his sophomore year, he was suspended fourteen times from school. His grades ranged from C=s to D=s. During his junior year, he was suspended from school twenty times for such things as habitual tardiness, skipping, disorderly conduct and fighting. In response to his inappropriate behavior, he signed a Abehavior contract@ which provided that if he continued to violate the school code of conduct, he would be Adropped@ from school. ADropping@ was a form of discipline short of expulsion. While it was widely used in the high school setting, it was not provided for by school policy and was not discussed in the school=s code of conduct. The student violated the behavior contract. Rather than dropping him from school, he was provided a Asecond chance@ by signing a second behavior contract. The day after signing the second contract, he was caught smoking on school property. As a result, he was Adropped@ from school for the balance of the school year (approximately 25 days). He was permitted to explain his side of the story, and admitted to smoking. The decision to drop him was then reviewed by the building administrator, who upheld it based on the violation of the second behavioral contract. This decision was then appealed to the superintendent, who met with the parent and the student the following week. The superintendent upheld the decision to drop Joseph. Ultimately, the parent requested a hearing before the board of education, but such hearing was not held until July. The board of education upheld the decision.
The student could have returned to school in August, but he enrolled in a GED program and completed his GED. He then enrolled in an auto collision repair course at a local university. Thereafter, he filed suit against the district under '504 and '1983. The district moved for summary judgment on both counts, asserting that there had been no showing of Abad faith or gross misjudgment@ on the part of the district, and that he had been provided due process.
The federal district court granted summary judgment in favor of the district. The Court adopted the Abad faith or gross misjudgment@ standard first articulated in Monahan v. State of Nebraska, EHLR 554:140 (8th Cir, 1982). The Court stated that not all students who suffer from ADHD require Section 504 referrals, and that he had been evaluated and found ineligible for special education. No further evaluation was recommended, and the parent did not request any further evaluation. Thus, the failure to evaluate and identify Joseph as eligible under Section 504 did not constitute bad faith or gross misjudgment.
As to the due process claim, the Court found that the plaintiff had been provided with notice and three opportunities to challenge the discipline being imposed; first at the building level, secondly a hearing and appeal to the superintendent, and finally, a full hearing before the board of education. The Court found that such procedures were adequate to protect his interest. The complaint was dismissed in its entirety.
Implications:
While no Sixth Circuit Court of Appeals case has ever adopted the Abad faith or gross misjudgment@ standard, this is the third Federal District Court case in Michigan to apply the standard to Section 504 claims. While the district may have committed errors, a failure to identify or evaluate a student may be nothing more than an error in professional judgment. Citing to more than half a dozen other court cases, the Court found that such errors in professional judgment do not amount to bad faith or gross misjudgment. Districts should not, however, take this case to mean that any failure to identify or evaluate students will never amount to bad faith or gross misjudgment. Such determinations are made on a case by case basis and a district is well advised to err to the side of evaluation of students if a question or suspicion of disability exists. In this case, the Court relied upon the fact that the district had evaluated the student for special education services, and that he had been found ineligible. It was uncontested that the parent never sought any further action by the district.
It is also important to note that the district court found that the student had been provided due process. The Court did not discuss the fact that the discipline imposed was not included in the district=s discipline policy. Instead the Court relied upon the fact that notice had been provided to the student on at least two occasions when he signed the behavior contracts, and that due process was provided following the violation of the behavior contracts. Districts should not take this, however, to mean that disciplinary sanctions may be Acreated@ which do not exist in its policy. The better practice is to have written policies and procedures relative to the imposition of discipline to assure the discipline is meted out in a consistent manner.
While the district was able to avoid liability in this case, the best protection is appropriate and adequate training of all staff on the requirements of Section 504 and its referral process. In addition, training of administrators should occur relating to the discipline of students with disabilities. Frequent review of discipline policies and procedures should occur to ensure that students are provided notice of the consequences of behavior, as well as to update and revise policies and procedures to include new Acreative@ interventions used to maintain appropriate student conduct.
Q. Does a parent have a right to a due process hearing concerning a manifestation determination where the IEPT concludes the misconduct was a manifestation of the student=s disability?
A. No. The IDEA and its implementing regulations provide that a parent may request a hearing only when the parent disagrees with a determination that the child=s behavior was not a manifestation of the child=s disability. See 20 USC 1415(k)(6)(i) and 34 CFR 300.525(a). Accordingly, where an IEPT has concluded that the misconduct was related to a student=s disability, a parent does not have a right to a hearing under the IDEA.
Implications:
While this fact situation may sound unlikely, parents are, with increasing frequency, requesting hearings even when the IEPT concludes that the misconduct was related to the student=s disability. This is particularly true if the parent does not understand the purpose of the manifestation determination review and believes that it is a forum for challenging the underlying disciplinary action (i.e., the misconduct did not happen or it did not happen the way school officials claim, etc.). See, Poteet Indep. Sch. Dst., 29 IDELR 423 (TX 1998) (hearing officer does not have jurisdiction to review underlying discipline decision).
Please note that while a parent does not have a right to a hearing under these circumstances, nothing within the IDEA precludes a parent from making a hearing request in the first instance. A school district receiving such a hearing request must process this request or risk the possibility of a Part 8 complaint. Once a hearing officer is selected/appointed, a school district can then request that the hearing officer dismiss the hearing on the basis that the parent does not have a right to a hearing under the IDEA.
Legislature Creates Michigan Virtual High School
The Legislature amended the Revised School Code in 2000 PA 230 to add '1481, which directs the Michigan Virtual University to develop, implement and operate the Michigan Virtual High School, beginning in the 2000-2001 school year. The Legislature also appropriated $15,000,000 to provide a grant to the Michigan Virtual University to create and operate the virtual high school. The goals of the virtual high school are:
$ to significantly expand curricular offerings for high schools across the state;
$ to create a statewide instructional model using interactive multimedia tools delivered by electronic means;
$ to provide pupils with opportunities to develop skills and competencies through on-line learning;
$ to offer high school teachers opportunities to learn new skills and strategies for developing and delivering instructional services;
$ to accelerate the state=s ability to respond to current and emerging educational demands;
$ to grant high school diplomas through a dual enrollment method with school districts; and
$ to act as a broker for college level equivalent courses and dual enrollment courses from postsecondary institutions.
The section further provides that course offerings shall include, but are not limited to:
$ information technology courses;
$ college level equivalent courses and dual enrollment opportunities;
$ at risk programs and services;
$ GED test preparation courses for adjudicated youth;
$ special interest courses; and
$ professional development programs and services for teachers.
The Michigan Virtual University (www.mivu.org) does not employ instructional staff or compete with existing colleges and universities. Its focus is on workforce development education and training. It is a broker that matches employers with existing institutions to provide courses and training.
It is expected to follow a similar approach in developing the virtual high school. The virtual high school will not itself award diplomas and is not expected to employ teachers. Rather, it will facilitate the offering of distance learning by and to local district high schools.
Obviously, many details of the virtual high school remain to be worked out and it will probably evolve over time. There are a number of virtual high schools already in operation. One example is the Kentucky Virtual High School (www.kvhs.org). While not necessarily a model for the Michigan virtual high school, it does give a general idea about how such schools operate.