Sankey Law Offices recently prevailed in a hearing at the Massachusetts Bureau of Special Education Appeals (BSEA) that will substantially impact the manner in which schools apply their attendance policies to students with disabilities. In Student v. Bay Path Regional Vocational Technical High School, Hearing Officer Rosa Figueroa found that Bay Path’s Attendance Policy, as applied to the student in this case, was discriminatory and violated his rights under Section 504 of the Rehabilitation Act of 1973. As a result, the hearing officer ordered Bay Path to modify its policy for this particular student. School Attendance Policies and Section 504 of the Rehabilitation Act of 1973 It is well established under Section 504 that a student with a disability is entitled to a reasonable modification of policies, practices, or procedures if such policies, practices and/or procedures discriminate against the student on the basis of his or her disability. Under state law, schools have the authority to create their own local attendance policies for students, but the policies cannot be discriminatory. If the policy is discriminatory, then the school must provide reasonable accommodations and/or modifications to the policy so that the student can have equal access to his or her education similar to the access provided to non-disabled peers. Application of Section 504 in Sankey Law’s Recent Case In this case, the student suffered from intense migraine headaches that frequently prevented him from attending school. The migraines were sporadic and unpredictable. Each time that the Student was absent due to a migraine, he provided a note from his doctor excusing his absence. However, under Bay Path’s Attendance Policy, once a student was absent for 10 full school days or 20 course periods in a school year, even if the absences were medically excused, the student could not earn graduation credits, despite completing all of the work for each course. As a result, the student would be retained the following school year. Bay Path applied this policy to the student knowing that his absences were medically excused and that they clearly resulted from his disability. Bay Path also required the student to attend Saturday School, which otherwise was primarily used as a punitive measure for truant students. In ruling that the school policy was discriminatory, the Hearing Officer wrote: In sum, I find that Student is an individual with a qualifying disability who is entitled to the protections of Section 504 of the Rehabilitation Act of 1973 and that Bay Path, a Federal funds recipient, discriminated against Student in failing to make reasonable modifications to its facially neutral Attendance Policy to accommodate Student’s known medically related disabilities. In doing so, Bay Path violated Section 504 and denied Student equal access to Bay Path’s general education program. The Hearing Officer issued several orders that Bay Path is obligated to implement, including ordering that the student’s medically excused absences due to migraines shall be deemed “exempt from the Attendance Policy” and not counted toward Bath Path’s maximum attendance limit. She also ordered that the

As the new school year begins, it’s important to keep in mind the new Free and Appropriate Public Education (FAPE) standard introduced by the United States Supreme Court earlier this year. On January 11, 2017, the Supreme Court heard oral arguments in Endrew F. v. Douglas County School District to decide the level of educational benefit a school must deliver to students with disabilities in order to meet the FAPE requirement of the Individuals with Disabilities Education Act (“IDEA”). By way of background – In 1982, the Supreme Court decided that the FAPE requirement compelled schools to provide services to students with disabilities that confer “some educational benefit.” The 10th Circuit, the relevant circuit in Endrew F., interpreted “some educational benefit” to mean “merely more than de minimis.” The family in Endrew F., however, argued that FAPE required schools to provide students with disabilities with a higher level of educational benefit – specifically, a “meaningful” educational benefit. The Endrew F. case involved a young boy with autism whose parents believed that he was not being provided FAPE by his Colorado school district. Because of this, the boy’s parents unilaterally placed him in a private educational setting and sought reimbursement from the school district. The administrative hearing officer, U.S. District Court for the District of Colorado, and 10th Circuit Court of Appeals applied the “merely more than de minimis” standard and determined that the boy had received enough of an educational benefit to meet the FAPE requirement, and ruled in favor of the school district. In reviewing the lower courts’ decisions, the Supreme Court issued a unanimous ruling on March 22, 2017. It vacated the 10th Circuit Court of Appeals’ decision and announced a higher standard of education for children with disabilities. The Supreme Court rejected the “merely more than de minimis” standard and adopted a standard that neither party had argued for, holding that schools must provide students with an education program that is “reasonably calculated to allow the child to make progress appropriate in light of the child’s circumstances.” Justice Roberts, who penned the court’s decision, noted that every child should be given an opportunity to meet challenging objectives and that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” Many Special Education Advocates and parents have celebrated the Endrew F. outcome, hopeful that it will give way to improvements in special education programs for children with disabilities across the country. In Massachusetts, it has been our experience that hearing officers have always applied this higher standard so, in our opinion, this decision will not have much impact on BSEA cases. However, it is certainly a relief that the Supreme Court has supported a child’s right to a program intended to result in more than minimal progress. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.

On August 29, 2017, the Massachusetts Supreme Judicial Court announced a decision that required the court to balance an individual’s right to be free from unreasonable searches on school property against the public’s interest in maximizing safety in schools. In this case, school officials saw the defendant, who was not a student, on the grounds of a public school. The defendant entered the school, lied about his identity and his reason for being there, and ultimately returned to the school parking lot. School officials approached the defendant in the parking lot and, after smelling marijuana, brought him into a conference room inside the school and called the Milton Police Department. Importantly, when the reporting police officer arrived, school officials did not inform her of the defendant’s interactions with school officials or that he had lied in order to enter the school. Operating only on her knowledge that the vice-principal was “excited” and that the vice principal and principal were “rattled,” the police officer proceeded to conduct (1) a pat-frisk and search of the defendant’s person, during which she found marijuana and close to $3000 in cash, and (2) a pat-frisk and search of the defendant’s backpack, during which she found a bottle of alcohol, a bag of marijuana, a scale and a loaded handgun. The police officer then arrested the defendant. The defendant was later tried and convicted in Quincy District Court of various gun and drug charges. Because the police officer did not have information from school officials to suggest that the defendant was criminally trespassing on school grounds, or that the defendant was armed, the Court held that the pat-frisk and search of the defendants’ backpack was not justified. In a split decision, the Court ruled that when a police officer conducts a search in a school setting, his conduct is governed by traditional Fourth Amendment standards rather than the reduced standard applied to searches by school officials when acting to ensure student safety. This means that when a police officer is investigating a suspicious person on school grounds, the officer must have reasonable suspicion supported by articulable facts that the defendant committed a crime in order to conduct a “pat frisk” of the person. Furthermore, the police officer must have probable cause to conduct a search, along with a search warrant, unless an exception to the warrant requirement exists. As a result, the Court vacated the defendant’s gun and drug convictions on the premise that the evidence used against him at trial was illegally obtained and should be suppressed. Importantly, the Court emphasized that its decision clarifies only the manner in which police officers must conduct themselves on school grounds and in no way impacts the ability of school officials to respond to threats to student safety, stating “it is important to emphasize here that our ruling does not bear on what school officials themselves can and should do to ensure the safety of students.” This decision certainly presents a predicament for school administrators who are not

Under the Individuals with Disabilities Education Act (“IDEA”), individuals claiming a violation of IDEA must exhaust administrative proceedings before bringing a case against a school district in federal court. But what happens if individuals bring a claim against a school district under other discrimination laws and do not raise an IDEA violation? May they proceed directly to federal court and bypass IDEA’s administrative requirements? On October 31, 2016, the United States Supreme Court heard arguments in Frye v. Napoleon Community Schools addressing this very question. In this case, a Michigan school district refused to allow a trained service dog to attend school to assist a student with cerebral palsy and impaired mobility. The student’s parents sued the school district in federal court under the Americans with Disabilities Act and the Rehabilitation Act for money damages. They did not claim an IDEA violation because they were not seeking educational relief. The school district argued that excluding a service animal from a student’s individual education plan was a violation of the student’s rights under IDEA and therefore the parents were required to exhaust the administrative process before filing in federal court. The student’s parents argued that because they are seeking money damages rather than educational relief for the emotional harm their daughter suffered by not having her dog attend school with her, they were not required to exhaust administrative proceedings under IDEA before filing in federal court. We are often faced with this type of issue when we represent students who seek damages for injuries that they suffer in school. We are hopeful that the Supreme Court will recognize the futility of requiring parents to proceed before the Bureau of Special Education Appeals when the Bureau does not have the power to award damages. A decision can be expected in 2017. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.

The Individuals with Disabilities Education Act (IDEA) is the federal law that governs special education. Children who are eligible to receive special education services are eligible to receive both (1) special education and (2) related services. IDEA defines related services as “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .” Examples include, but are not limited to: speech-language pathology services, audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, social work services, school nurse services, counseling services, orientation and mobility services, and medical services for diagnostic or evaluation purposes The IEP team determines what related services the child needs and includes them in the IEP. The team must specify in the IEP when the service will begin, where it will be provided, and how often and for how long the service will be provided. See What is An IEP Team and Who Are its Members for more information regarding IEP teams. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.