June 1994, Vol. 7, No. 10
An "Ounce of Prevention..." News
Back in the November 1993 issue of OP News, we
announced that the Office of Civil Rights (OCR) of the U.S. Department of
Education was simplifying its procedures relating to the handling of
Section 504 complaints. At that time all we could do was describe what the
new procedures would probably entail based upon conversations with Michael
Gallagher, branch chief of the OCR regional office in Cleveland. Now
retitled the "Complaint Resolution Manual," the text of the new
procedures has been available generally only for a month or two. A copy of
the entire manual can be obtained from OCR or OP News upon
request.
The procedures outlined in this new manual reflect OCR's commitment to
reduce its bureaucratic practices (i.e., tremendous amounts of time spent
on complaint investigations) and maximize its available resources (i.e.,
allocate more staff for compliance review and technical assistance). In
addition to policing Section 504, OCR has enforcement responsibilities
under Title VI, pertaining to race, Title IX pertaining to gender and ADEA
pertaining to age discrimination in education. Nonetheless the majority
(i.e., 53%) of the approximately 5,000 annual complaints it receives
allege handicap discrimination under 504.
Under its prior complaint procedures, OCR conducted a full
investigation of all timely complaints over which it had jurisdiction.
This included collection of written data, on-site interviews, file review,
formulating a preliminary conclusion, and issuing a letter of findings
(LOF). These complaint investigations consumed 90% of OCR's time
nationwide, with the remaining 10% being spent on compliance reviews and
technical assistance. By changing its process, OCR hopes to loosen up 40%
of its time to address areas such as sexual harassment, overrepresentation
of minorities in special education and low level classes, under-
representation of women, girls, and minorities in math, science, and
gifted/talented classes, admissions/testing criteria, etc. In addition, it
desires to conduct targeted compliance reviews which would be announced
ahead of time. In this regard, OCR readily admits it is seeking immediate
exposure for two reasons. First, it wants parents to know that the review
is being conducted so they have an opportunity to provide information,
and second, it wants to maximize the dissemination of information. It
intends to issue an LOF in virtually every incidence of compliance review.
Finally, with respect to technical assistance, OCR indicates it hopes to
have an "unprecedented relationship" with school districts. Its
goal is to have a clear explanation of rights and responsibilities so that
districts and consumers will know both and complaints can be avoided.
As for the Section 504 complaint handling process itself, it is clearly
streamlined. Investigations will occur only if necessary. The two
approaches which can be utilized to resolve a matter quickly are the early
complaint resolution (ECR) and the post-ECR resolution commonly referred
to as the "commitment to resolve."
In the ECR process, OCR plays a facilitator's role with both parties
agreeing to a settlement, the complaint being withdrawn, and no LOF
issued. OCR does not enforce the settlement agreement, but if there is a
breach, the complainant can file another compaint based on a timely act of
discrimination. Mere breach of the settlement does not constitute a
complainable act.
As for the commitment to resolve approach, if ECR is not pursued, or is
pursued unsuccessfully, and the investigation begins, a district can at
any point in the investigation indicate its willingness to resolve the
matter. For the purposes of resolution, OCR will presume that all of the
complaint's allegations are true. If the actions the district is willing
to take address all of the allegations in the complaint, OCR will consider
the matter resolved. The resolution will then be memorialized in what is
known as a written "commitment to resolve." It will be monitored
by OCR, but rather than an LOF being issued, the commitment to resolve
would be attached to a closure letter. Only when OCR believes an LOF would
have significant precedential value for either it or the public would it
issue one.
If a dispute cannot be resolved under either of these approaches and OCR's investigation determines that evidence establishes a violation, an LOF would be issued as under prior procedures.
IMPLICATIONS:
For both districts and parents these new procedures have many
implications. First and foremost, they will greatly facilitate the
resolution of complaints with a minimum of time and expense given a formal
investigation can easily be avoided. However, care must be taken by a
district with regard to the settlement or commitment to resolve documents
to ensure that both legally and in terms of public perception, the
district does not admit to having violated the law where it did not do so.
From a legal standpoint, admissions in such a settlement or commitment to
resolve could be used as the basis for a subsequent lawsuit seeking money
damages. Consulting with your legal counsel before finally settling a
matter is advisable.
The time which these procedures will free up for OCR to pursue other
activities also has practical implications for districts. From discussions
with OCR representatives, it appears that one of its targets in compliance
reviews will be the alleged over-inclusion of minority students in special
education. In this regard, it appears OCR will be changing its focus from
disparate treatment to disparate impact, examining the differential
referral rates for minority students and the differential success rates in
special education for such students, as reflected by completion rates and
their IEP content over a ten year period.
Another area where greater activity can certainly be expected is with respect to claims alleging sexual harassment under Title IX. In response to such claims, OCR will typically be seeking district commitments to develop and adopt sexual harassment policies and guidelines for both students and staff as well as the inservicing of both
students and staff as to the content and implementation of such policies and procedures. OCR staff will provide such inservices free of charge. Arrangements can be made by contacting the regional OCR office in Cleveland at 216/522-4970.
Q What should a district do when a parent sends a letter to one or more
public officials requesting they investigate or intervene in a current
dispute?
A Clearly, the district is in a very difficult situation. On the one
hand, esespecially where the letter makes incomplete or inaccurate
allegations, the district wants to set the record straight. Further, it
certainly does not want any public official being led to believe their
district is violating a student's rights or not appropriately addressing a
student's need when such is not true. But, on the other hand, due to the
confidentiality requirements imposed upon it, it is not in a position to
totally explain its side of the "story."
Certainly, one option is to do nothing. But, we suggest often the
better option is to respond by way of a letter which reads somewhat as
follows:
Dear [public official]:
"Recently you received a letter from [disgruntled parents] regarding concerns which they have relative to the educational programming for their son/daughter [name]. Our district feels compelled to advise you of its position and hastens to do so.
Due to the confidentiality requirements of the Family Educational
Rights and Privacy Act and other laws, we are not in a position to respond
in detail to the various factual and other allegations made in this letter
regarding the actions and motivations of our district's staff in
addressing the educational needs of the [son/daughter]. We do feel,
however, that it is important we state our belief that the description of
events as related in the letter is both incomplete and inaccurate.
Further, the district denies that either it or any of its staff have in
any way violated the rights of [the parents] or their son/daughter under
either federal or state special education laws [or other laws if
applicable]. [Moreover, we believe you should know that when the parents
previously questioned the actions of the district and its staff in a [OCR
complaint, state complaint, etc.] proceeding, the district's position was
upheld, it being found it violated no law or rule.]
Currently, [through arrangements worked out between the parties an
Individual Educational Planning Committee meeting is being convened. This
is not only appropriate, but the legally mandated process for district
staff and the parents to attempt to cooperatively discuss, and hopefully
resolve, any differences they have with regard to appropriate educational
programming for their son/daughter.] Or as an alternative if
appropriate: [a due process hearing, requested by the parents, is
in the process of being held which is the appropriate, legally mandated
process to resolve this dispute.]
With all due respect for your position and a possible interest in this
matter or education generally, the district does not believe that
directing to you the above mentioned letter concerning this matter is
either appropriate or constructive. However, should you have any questions
regarding the position or actions of the district or any of its staff
concerning this matter, please do not hesitate to contact [director of
special education] at ________________. We will respond to the extent we
can given confidentiality requirements and the commitments we have made to
cooperatively pursue the process mentioned above in an effort to provide
appropriate programming for [student's name].
[SIGNATURE BLOCK]
cc Parent
Board of Education
Obviously, this suggested letter will not fit every situation and will need to be adapted to fit the circumstances. However, we believe the approach utilized in the above letter is generally the best.
Several months ago the National Education Association (NEA) presented
OSEP with a series of questions frequently asked by its members and
requested specific responses in order to gain guidance on IDEA's
requirements. OP News obtained a copy of a draft of OSEP's
response which is to be finalized prior to the commencement of the next
school year.
The focus of many of the questions is on the "inclusion"
concept. After noting that there is no federal definition of the term "inclusion"
inasmuch as no federal statute utilizes it, the document addresses the
question as to what factors must, and may not, be considered in
determining the appropriate placement of a student with disabilities.
After indicating that the overriding rule is that each student's placement
must be individually determined based upon that student's needs, OSEP
noted the following factors would be relevant:
The educational benefit to the student from regular education in
comparison to the benefits of special education;
The benefit to the disabled student from interacting with nondisabled
students; and
The degree of disruption of the education of other students resulting
in the inability to meet the unique needs of the student with a
disability.
OSEP advised that districts may not make placements based on the
following factors:
Category of disabilities;
The configuration of the delivery systems;
The availability of education and related services;
Availability of space; or Administrative convenience.
In response to the question as to whether federal law permitted
consideration of the impact of a regular classroom placement on those
students in the classroom who do not have a disability, OSEP answered yes.
It noted that if a student with a disability had behavioral problems that
were so disruptive in a regular classroom that the education of other
students was significantly impaired, the needs of the disabled student
could not be met in that environment. However, OSEP emphasized that before
making such a determination, districts must ensure that consideration has
been given to the full range of supplementary aids and services that could
be provided to accommodate the unique needs of the disabled student.
Another question asked was under what circumstances, if any, would the placement of large numbers of students with disabilities in a regular classroom constitute a violation of federal law. OSEP stated that placement of a student in a regular classroom based upon those impermissible factors noted above, rather than the student's individual needs, would violate IDEA. Additionally, placing disabled students in the regular classroom without providing them with necessary aids and supports would be violative of the law. Finally, it noted if a district placed a student in a regular classroom in the school the student would attend if not disabled, but the student's IEP could not be implemented, even with appropriate aids and supports, such would also violate IDEA. Significantly, it gave no further clarification as to how "large a number" of students with disabilities could participate in a regular classroom without violating the law.
NEA asked OSEP's view as to who should be involved in an IEP as a
matter of good practice and whether a student's teachers can insure they
will be able to attend the IEP meeting. OSEP answered that as a matter of
good practice, individuals who know the student best, such as those
knowledgeable about the student's disability and the educational options,
should attend the student's IEP meeting. As for the requirements that a
student's teacher attend the IEP, it requires that only one be in
attendance. OSEP opined that if the child had more than one teacher this
would generally be the special education teacher. It would be the
district's option to bring more than one teacher, and the parent could
also request that the student's regular teacher attend. OSEP notes that if
the student's regular education teacher does not attend, a member of the
student's IEPC should inform the regular education teacher about what took
place at the meeting.
The question is asked as to how a teacher insures that needed services are included in a student's IEP and what a teacher can do if he or she is told not to put into the IEP services which the teacher believes are necessary for the student. OSEP responds that IDEA contemplates decisions to be made by the IEP team. But, that team is to have an individual with authority to commit the district's resources which is the assurance that the district will provide the services the IEP team determines are necessary. Therefore, if a teacher who is a participant on the IEP team believes a particular service is appropriate and necessary for a student, the teacher should recommend those services during the IEP meeting for consideration. The response to a follow-up question states that under federal law, an educator has no right to file a dissenting report nor appeal an IEP determination, the latter being the right of only the district or the parents. (Of course under Michigan rules, any member of an IEPC, including a teacher, may file a dissenting report pursuant to R 340.1721c(4).)
Probably the most interesting question was the one that asked when an
inclusive placement is not working (in the opinion of professional staff)
and the placement is disrupting the learning of the rest of the class,
what recourse does the district have, given the stay put provisions of
IDEA, if the parent will not consent to change the placement? OSEP
responds that if after reviewing the situation, and possibly adding
additional supports and aids, the district agrees with professional staff
and the parents are unwilling to agree to an alternative or even interim
placement, the stay put provision would require that the student remain in
the inclusive placement pending completion of all proceedings. But, OSEP
notes that a district could attempt to obtain a court order by
demonstrating that maintaining the student in the current placement is
substantially likely to result in injury to the student or to others. OSEP
then commented: "Disruption of the learning of classmates may not be
sufficient to satisfy this burden. For nondisabled students, policies
differ, in that IDEA and Section 504 requirements, such as the procedural
safeguards, do not apply."
IMPLICATIONS:
For the last several years, the NEA and most of its state affiliates,
including the MEA, have had a variety of concerns with regard to
implementation of various LRE options, most notably inclusion. In 1993,
the NEA established a special advisory committee on inclusion. Among the
committee's many activities were to meet with representatives of OSEP and
request a clear, comprehensive policy statement on various issues relating
to inclusion. The document discussed above is a draft of that statement
and a copy is available to OP News subscribers upon request.
While none of OSEP's responses in the draft offer any "surprises,"
some do offer interpretations or insights not previously published. For
example, note the comment that OSEP made in connection with a district
seeking an injunction to change the stay put of the student in an
inappropriate inclusive option where the parents were rejecting any
change. OSEP there noted that the disruption of learning of classmates may
not be sufficient to satisfy the burden which a district would have to
demonstrate, i.e., that maintaining the student with disabilities in the
current placement was "substantially likely to result in injury to
the student or to others." Its apparent reliance in making this
comment upon the fact that nondisabled students do not have any procedural
safeguards under IDEA or Section 504 could certainly be questioned.
Accordingly, the final draft of the responses to NEA questions which will
be out soon must be closely watched. OP News will monitor its
publication and advise you immediately.
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