Civil Rights Issues Impacting Students with Disabilities Romie Barriere rbarriere@bruman.com Jennifer Mauskapf jmauskapf@bruman.com Brustein & Manasevit, PLLC Fall Forum 2011

Overview The Law Enforcement Recent Civil Rights Issues Sec. 504 ADA Title II & III Enforcement Recent Civil Rights Issues Bullying Accessible/Emerging Technology Hidden Disabilities Service Animals

THE LAW

Section 504 of the Rehabilitation Act of 1973 34 C.F.R., Part 104 Enforced by ED OCR and DOJ Civil Rights Division “No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.”

Who is covered? Section 504 Any person who (1) has a physical or mental impairment that substantially limits one or more major life activities (2) has a record of such impairment or (3) is regarded as having such impairment Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks

Section 504 in PostSecondary Settings For postsecondary education programs a student must meet the academic and technical standards requisite for admission or participation without regard to their disability in order to be a “qualified” individual Postsecondary institutions are not required to identify students with disabilities

AMERICANS WITH DISABILITIES ACT (ADA) Who is Covered? Any individual with a disability who: (1) has a physical or mental impairment that substantially limits one or more major life activities; or (2) has a record of such impairment; or (3) is regarded as having such an impairment  Individual must be qualified for the program, service, or job

IDEA vs. 504 SECTION 504 STUDENTS Students with Physical or Mental Impairment Students with Record of Physical or Mental Impairment Students Regarded as Having Physical or Mental Impairment IDEA Students

Title II of the ADA, 28 CFR Part 35 Enforced by OCR, DOJ by referral Prohibits discrimination on the basis of disability by public entities, including public schools Covers access to all programs and services offered by the entity, including physical access

State and Local Governments May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability Must provide integrated programs and services Must eliminate unnecessary eligibility standards Prohibits requirements that tend to screen out individuals with disabilities

State and Local Governments cont. Requires reasonable modifications unless a fundamental alteration in the program would result Must furnish auxiliary aids and services when necessary May not place special charges on individuals with disabilities Programs must be readily accessible and usable by individuals with disabilities

Title II: Fundamental Alteration or Undue Burden Determination must be made by the head of the public entity or designee Must be accompanied by a written statement of the reasons for reaching that conclusion Determination must be based on all resources available for use in the program

Title III of the ADA, 28 CFR Part 36 Enforced by DOJ Civil Rights Division Applies to public accommodations, including private universities

Public Accommodations MUST… Provide goods and services in an integrated setting Eliminate unnecessary eligibility standards or rules Make reasonable modifications unless a fundamental alteration would result Furnish auxiliary aids when necessary, unless an undue burden or fundamental alteration would result

Public Accommodations Must (cont.) Remove architectural and structural communication barriers or provide readily achievable alternative measures Provide equivalent transportation services Maintain accessible features of facilities and equipment Design and construct new facilities and alterations in accordance with the Americans with Disabilities Act Accessibility Guidelines

Title III: Fundamental Alteration or Undue Burden Factors to consider: Nature and cost of the particular action Overall financial resources available to fund the specific program in question and effect of expenditure on the resources of the program Overall financial resources of the school Size of the school system Accommodation at issue and how it relates to the program as a whole

Enforcement

Office for Civil Rights (OCR) Department of Education, Office for Civil Rights Mission: “To ensure equal access to education and to promote education excellence throughout the nation through vigorous enforcement of civil rights.”

OCR Title VI of the Civil Rights Act of 1964 Title IX of the Education Amendments of 1972 Age Discrimination Act of 1975 Section 504 of the Rehabilitation Act of 1973 Title II of the Americans With Disability Act of 1990 2002 Boys Scouts of America Equal Access Act

OCR Headquartered in Washington, D.C. with 12 regional offices Carries out mission through: Complaint Investigation and Resolution Proactive Enforcement: Compliance Reviews Monitoring of Resolution Agreements Technical Assistance Disability complaints comprised half of the complaints filed in FYs 06-08

US Department Of Justice (DOJ) Department of Justice, Civil Rights Division Mission is to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society

DOJ Civil Rights Division Enforces a broader range of statutes including: The Civil Rights Act of 1965 Title III of The Americans with Disabilities Act of 1990 Sections 504 and 508 of the Rehabilitation Act of 1973 May enforce IDEA and Title II of the ADA upon referral from other governmental agencies

DOJ CIVIL RIGHTS DIVISION Headquarters in Washington, D.C. Division is made up of ten sections including the Educational Opportunities and Disability Rights sections Disability Rights Section Activities: Enforcement Certification Negotiated Rulemaking Coordination Technical Assistance

RECENT CIVIL RIGHTS ISSUES IMPACTING STUDENTS WITH DISABILITIES

Bullying October 26, 2010 OCR Dear Colleague Letter Bullying behavior may cross the line to become “disability harassment” White House Conference on Bullying Prevention www.stopbullying.gov

Accessible/emerging Technology OCR Guidance June 29, 2010 Dear Colleague Letter stating that colleges and universities cannot use inaccessible technology where no reasonable accommodation or modification exists or is unavailable May 26, 2011 FAQ discussing the application of the equal access requirements of the ADA and Section 504 to the use of emerging technology University of Virginia Darden School of Business Use of Kindles denied students equal access to the University’s programs and activities and effective communication in violation of Section 504 and Title II of the ADA

Physical Access Transportation Physical accessibility of facilities Ensuring equal access to transportation services for students with disabilities Chicago Pubic Schools compliance review Alabama Education Department Physical accessibility of facilities Adoption of the 2010 ADA Standards for Accessible Design, effective May 2011, mandatory May 2012 OCR Compliance Reviews: Montana Tech of the University of Montana University of Montana, Helena

Hidden disabilities Physical or mental impairments not “readily apparent to others” Students with hidden disabilities are afforded the same protection under Section 504 and the ADA as other students

Hidden Disabilities Gloucester County VA Public Schools School found student with serious peanut allergy not to have a qualified disability and therefore not eligible for 504 protection OCR intervened in decision due to “exceptional circumstances” Mystic Valley Regional Charter School State Hearing Officer decision required school to ban all peanut products from child’s classroom due to life threatening allergy School failed to make undue hardship/burden argument

Service Animals Definition of service animal was changed effective March 15, 2011; now limited to dogs. An animal that meets the definition of “service animal” can be a reasonable accommodation

Service Animals HUD v. University of Nebraska at Kearny - Fair Housing Act lawsuit re: dog in university-owned apartment to support student with depression and anxiety Bakersfield City School District - OCR found that a school district violated the ADA and Section 504 by excluding dog without proper procedures for review

Resources United States Department of Education Office of Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html United States Department of Justice Civil Rights Division http://www.justice.gov/crt Office for Special Education Programs http://www2.ed.gov/about/offices/list/osers/osep/index.html Department of Education Anti-Bullying Website www.stopbullying.gov

Questions?

LEGAL DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.