Hold your district accountable for discrimination

Did you know that every child on an IEP or 504 is protected against disability-based discrimination, retaliation, and bullying?

There are two categories of law that protect your child against disability discrimination: discrimination laws and special education laws.

Discrimination can take many forms, such as excluding students with disabilities, giving them unequal treatment, harassment, retaliation or failing to provide reasonable accommodations. The protections for students with disabilities from discrimination applies to all school programs, both academic and nonacademic.

1. Federal and State Disability Discrimination Laws

Below are the different federal and state laws that protect students from discrimination:

A. The Americans with Disabilities Act (ADA)

The ADA prohibits disability-based discrimination. Title II of the ADA applies to all government entities, which includes every public school.

Title III of the ADA prohibits discrimination by businesses, or “public accommodations,” including private schools. The ADA does not cover religious schools or private schools unless the school accepts federal funding.

B. Section 504 of the Rehabilitation Act (Section 504)

Section 504 prohibits disability-based discrimination by any school that receives federal funding. Most public schools are covered by Section 504 because they receive federal funding. Private schools that receive any financial assistance from the federal government are also covered under this law. This includes religious schools that are exempt under the ADA.

C. California Government Code Section 11135 (Section 11135)

Section 11135 is similar to Section 504, but it prohibits discrimination by any program that receives state funding. This usually always applies to public schools. If a private religious school receives any funding from the state government, they are subject to this law.

D. California Education Code Section 220 

Section 220 is similar to Section 11135 and prohibits discrimination in any school-based program or activity receiving state funding. This law explicitly includes schools with students who receive state financial aid.

2. IDEA and 504 require public schools to provide reasonable accommodations

Under IDEA and 504, parents of students with disabilities can request a reasonable accommodation at any time. As you know, it is always best to make the request in writing to avoid delays and miscommunication.

If your child has not yet been found eligible for a 504, the request should include details about your child’s disability, a letter from a treating professional explaining the disability-related need for your child’s accommodation, and suggestions on specific accommodations that you think would work for your child. Sample letters to request and support a reasonable accommodation are included at the end of this article.

Schools receiving federal funding must have a Section 504 Coordinator. Requests for accommodations can be submitted to this coordinator. The 504 Coordinator should then schedule a meeting with you and your child’s teacher within 30 days to discuss a potential 504 Plan.

The goal of an accommodation is to provide your child with an equal opportunity to access the same benefits other typical developing children at the school enjoy. This opportunity must be provided in the most integrated setting appropriate to the child’s needs.

3. Advocating for Your Child

If your child’s school refuses to provide accommodations or otherwise discriminates against your child because of their disability, you have the option of filing an internal grievance, a state or federal administrative complaint, or a lawsuit.

A. Internal Grievances 

Under Section 504, a school receiving federal funding must have procedures in place for students who believe their rights have been violated. These procedures must include due process standards and provide for prompt resolution of complaints. If you want to file an internal grievance with your school, ask your school’s Section 504 coordinator for more information.

Keep in mind that if your complaint concerns discrimination, it must be filed within six months from the date the discrimination occurred, or from the date you first knew about the discrimination. This six-month period may be extended by the district superintendent if you ask for an extension in writing.

An internal complaint typically is not the best path for a successful outcome. This is because the complaint is filed with your local school district who will then investigate themselves. If you are serious about having action taken, I recommend you consider the following complaint options.

B. Federal Administrative Complaints 

Office of Civil Rights (OCR):

The U.S. Department of Education’s Office of Civil Rights (OCR) investigates violations of schools that receive federal financial assistance. Complaints with the OCR must be filed within 180 days of the discrimination unless you have already gone through your school’s internal grievance process. If you have completed your school’s internal grievance process, you must file your complaint with the OCR within 60 days of your school’s decision. You can find information about filing a complaint with OCR https://www2.ed.gov/about/offices/list/ocr/index.html.

OCR has released a technical assistance video called “How to File a Complaint with the OCR” to help parents, families, students, and stakeholders better understand how they can file an OCR complaint; this video is available at www.youtube.com/embed/dvxa5dYNKK8.

Department of Justice (DOJ):

The U.S. Department of Justice (DOJ) investigates violations of the ADA. Title II complaints (for public schools), must be filed within 180 days of the discrimination. Title III complaints (for private schools), can be filed at any time.  It is best to file as soon as possible though, because time can make it difficult to prove. More information about filing a complaint with DOJ can be found here: https://www.ada.gov/filing_complaint.htm

C. Administrative Complaints

You must file a complaint within one year of the discrimination.

Department of Education (DOE)

To file a compliance complaint, you will file the complaint with your State Department of Education.

The State Department of Education (CDE) investigates allegations of noncompliance with laws in public schools. The Department must directly intervene when (1) there is immediate physical danger, (2) a student’s “health, safety, or welfare” is threatened, (3) a school has failed to comply with due process laws, (4) a student is not receiving their IEP services, or (5) the school has violated the Individuals with Disabilities Education Act (IDEA).

The complaint must be filed within one year of the alleged violation. You can find information about filing a complaint with the California Department of Education at https://www.cde.ca.gov/sp/se/qa/cmplntproc.asp.

If you live in a state other than California, you will file with your State Department of Education.

4. Litigation

If you think your child’s education and/or mental, emotional, or physical health was harmed and you want to file a 504 lawsuit for damages, you may need to file a tort claim first.  When filing a tort claim, you may have to file within six months of when your child was harmed if you are suing for personal injury. Be sure to check with your attorney about whether a tort claim would be necessary.

If you are proceeding solely on this ADA claim, seeking compensatory damages, you need to understand that there is no longer a need to exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA) prior to filing American with Disabilities Act (ADA) claims seeking compensatory damages.

In other words, even though an underlying claim is one for the denial of a free and appropriate education under the IDEA, as long as a plaintiff seeks relief that the IDEA cannot provide (i.e., monetary damages via an ADA claim), a plaintiff is not required to first exhaust administrative remedies under the IDEA.

This is an important clarification for parents of students on an IEP because it removes an often-used defense to ADA claims that are based on the same facts that gave rise to an alleged violation of the IDEA. If your child is on a 504, this would not be an issue or concern.

In Perez v. Sturgis Public Schools, et al., slip op., No 21-887 (S. Ct. Mar. 21, 2023), a hearing-impaired student in Sturgis Public School District in Michigan was not permitted to graduate. He filed an administrative complaint alleging the district violated the IDEA, by not only neglecting him but by lying to him about the progress he had made. The district settled this claim. He then sued the school district under the ADA for damages, based on those same allegations.

Because he had settled the IDEA complaint, he had not exhausted the administrative procedures under the IDEA. The district used that fact to claim that his failure to exhaust the IDEA remedies barred his ADA claims, which up until March 21, 2023, was a requirement.

The basis for this argument was 20 U.S.C. §1415(l). That statute requires a plaintiff “seeking relief that is also available under” IDEA to first exhaust IDEA’s administrative procedures. The issue was whether the student’s claim for relief under the ADA—based on the same facts giving rise to the IDEA claim—was barred if the plaintiff had not yet exhausted the IDEA’s administrative procedures.

The Supreme Court accepted this case to resolve the split among the circuits. On March 21, 2013, the Supreme Court unanimously reversed the Sixth Circuit and held that exhaustion of IDEA administrative procedures was not required.

This is a huge win for us parents as now we can go straight to filing a discrimination lawsuit with ADA without being required to exhaust IDEA due process first.

Here are the sample letters to request reasonable accommodations.

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Sample Letter to Request a Reasonable Accommodation 

[Date]

Dear [School or name of 504 Coordinator, if known]:

I am writing to request reasonable accommodations for my son/daughter, [child’s name] because of his/her disability/disabilities.

My child is [a student at/applying to become a student at] [name of school]. Because of his/her disability, he/she needs the following accommodations: [list accommodations].

My child’s [physician/psychiatrist/psychologist/therapist/social worker/occupational therapist /other individual (describe)] has deemed these accommodations/modifications necessary in light of his/her disability. Please see the attached letter from [doctor or professional’s name].

Federal and state law require that K-12 schools reasonably accommodate students and applicants who have disabilities. Please respond to this request by [date]. Feel free to contact me at [your phone number and/or e-mail address] if you have any questions. Thank you.

 Sincerely,

[Your name]

Sample Support Letter 

[Date]

Dear [School or name of 504 Coordinator, if known]:

I am the [physician/psychiatrist/psychologist/therapist/social worker/occupational therapist] for [Name] and am familiar with his/her condition. [S/he] has a disability that causes certain functional limitations. These limitations include [list functional limitations that require the requested accommodation].

[The requested accommodation] is necessary for [Name] to [apply for/have equal access to the services and benefits of] [name of school]. [Describe how the accommodation will assist or support the individual]. Thank you for providing this reasonable accommodation for [Name].

Sincerely,

[Name and Title]

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The most important information in this article is understanding the law in terms of a parent right to file a lawsuit with ADA for discrimination and win a monetary settlement, without having to go to due process under IDEA. This victory which took place on 3/21/23, was a huge win for us in strengthening parent rights to advocate and protect our children.

Cheering you on always!

Valerie Aprahamian

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 If you haven’t joined our Private Special Education Parent Empowerment Facebook Group yet, you should check it out here.

Here’s what parents are saying about the group:

“I’ve seen other posts and advice from other Facebook pages. Your page is concise, provides further knowledge, and I just don’t see other pages that compare to yours in my experience.”
– Jessica

“Please keep blowing the whistle, Valerie! So many children are being deprived of an education because of all the corruption and lies being told to parents. We pay our taxes like everyone else, which can be interpreted as our children have the same rights as any other child.”
– Maria

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Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.

www.advocates4angels.com