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    At Gahagan Law, our goal is to assist students, families, and individuals throughout North Carolina resolve immediate issues and address future issues that may arise.  To understand how we can best serve our clients, we begin with an initial one-hour consultation. We hold our consultations face to face in our Durham and Cornelius offices, by phone, or using Skype or FaceTime, depending on the preference of the client.  

    To prepare for the consultation, our preference is to request the client’s entire educational/employment record from the school district/university.  This process takes approximately 45-days; therefore, some clients prefer to provide a copy of the records. If a client provides a copy of the records, the records should be mailed, emailed, or hand delivered to our office at least one week in advance.

    At the consultation, we review various strategies our clients may employ to address their concerns. Some options we discuss may involve litigation, and other options may not require any direct assistance from Gahagan Law; however, most clients prefer to establish ongoing retainers with our firm and choose to seek our guidance throughout the process.  At the consultation we can give you information on expectations for costs, time, and other factors to assist you in making an informed decision.

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Types Of Law We Practice

When a student with a disability is being bullied at school, the bullying can result in a denial of a free appropriate public education (FAPE) under Section 504 and the IDEA.

Bullying on the Basis of Disability

 

A school is required to take “immediate and appropriate action to investigate or otherwise determine what occurred” when the school knows, or should know, a student is being bullied based on the student’s disability. If the investigation reveals the bullying created a hostile environment, “the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects.”

 

The school must also investigate whether the bullying affected the student’s receipt of services or access to his or her education. Even if no hostile environment existed, the school must still address FAPE-related concerns.

 

Bullying on Any Basis

 

When a child with a disability is bullied on any basis (not just on the basis of the child’s disability), and the child receives services under the IDEA, the school should convene an IEP meeting to “determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide a meaningful educational benefit.”

 

A similar requirement exists when the child receives services under Section 504.

 

If the team determines the student’s needs have changed, the school must determine which additional or different services are needed, make any necessary changes, and “safeguard against putting the onus on the student with the disability to avoid or handle the bullying.”

 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf

 

Some common issues we see arise regarding bullying include:

  • Inadequate investigation of bullying complaints by school administrators;
  • Inappropriate actions taken in response to bullying complaints (e.g., removing the bullied child rather than the bully from the class/extra-curricular activity); and
  • Students who become unable to attend school due to bullying resulting in a denial of FAPE.

Educator Employment

  • All educators are afforded various levels of procedural due process protections and cannot be dismissed for reasons that are unconstitutional.

 

Common issues we see arise related to Educator Employment:

  • Discriminatory treatment of educators due to race, age, or disability;
  • Retaliation against educators in response to the educator advocating for a particular student or issue; and
  • Failing to follow appropriate procedures for reprimanding or dismissing educators.

 

The Individuals with Disabilities Education Improvement Act (“IDEA”) governs how states provide early intervention, special education, and related services to students with disabilities. The IDEA guarantees students with disabilities a free appropriate public education (FAPE).  The purposes of the IDEA include ensuring that all children with disabilities have access to a free appropriate public education (FAPE) that “emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A).

 

The information provided below is only a snapshot of the requirements of the IDEA and issues that can arise for students with disabilities. For more information about your child’s rights, please contact us for a consultation.

 

Identification, Initial Evaluation, and Eligibility

 

Under the IDEA, school districts are required to identify and evaluate children with disabilities, including children in private school, children who are being homeschooled, and homeless children. 34 C.F.R. § 300.111.

 

After identifying a child with a disability, the school district must convene a referral meeting and determine whether the school district should evaluate the child. The evaluations must include assessments to determine if the child is a child with a disability under the IDEA and to determine the educational needs of the child. 34 C.F.R. § 300.301.

 

After the evaluations are completed, a meeting is convened with the parents and school staff, and a determination is made as to whether the child is eligible for services under the IDEA.

 

In order to be eligible for services under the IDEA, a child must meet the eligibility criteria for one (or more) of the following disabilities:

  • Intellectual disability;
  • Hearing impairment;
  • Speech or language impairment;
  • Visual impairment;
  • Serious emotional disturbance;
  • Orthopedic impairment;
  • Autism;
  • Traumatic brain injury;
  • Other health impairment;
  • Specific learning disability;
  • Deaf-blindness; or
  • Multiple disabilities.

34 C.F.R. § 300.8(c).

 

The disability must also affect the child’s academic performance. 34 C.F.R. § 300.8(a). If the disability does not affect the child’s academic performance, the child still may require accommodations under Section 504.

 

Some common issues that we see arise related to identification, evaluation, and eligibility:

  • Failing to timely identify and evaluate a child with a disability;
  • Waiting for a child to fail before referring for an evaluation;
  • Keeping a child in RtI too long without sufficient progress;
  • Failing to respond to a parent’s request for evaluations;
  • Refusing to evaluate a child after a referral; and
  • Refusing to find a child eligible for services.

 

Individualized Education Program (IEP)

 

Once a school district finds a child eligible under the IDEA, it must develop an Individualized Education Program (IEP), a document that describes the child’s strengths and challenges, sets forth annual goals, details the services the school will provide, and indicates how the child’s progress will be measured and reported to the parents.

 

The members of an IEP team include parents and school staff, including teachers of the student (both regular education and special education), any related service providers, a representative of the school district, and an individual who can interpret evaluation results. 34 C.F.R. § 300.321.

 

The team must consider certain special factors, including whether the child’s behavior impedes the child’s learning or that of others and whether the child needs assistive technology devices and services. 34 C.F.R. § 300(a)(2).

 

The school district must review and revise the IEP at least annually. 34 C.F.R. § 300.324(b).

 

Some common issues that we see arise related to IEP development:

  • Refusing to provide adequate specially designed instruction and related services;
  • Failing to develop appropriately ambitious IEP goals;
  • Developing IEP goals that are not measureable;
  • Vague present levels of performance that do not provide a baseline for measuring IEP goals;
  • Lack of sufficient supplemental aids and services; and
  • IEP goals that repeated from year to year.

 

 

 

 

Placement & Least Restrictive Environment

 

During the IEP meeting, the team must determine the educational placement where the child will be educated. Placements include the regular education classroom, special education classroom, separate school, private school, and homebound instruction. 34 C.F.R. § 300.116. The placement must also be as close as possible to the child’s home.

 

The school district is tasked with ensuring that children with disabilities are educated in the least restrictive environment (LRE):

 

  • To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
  • Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

 

34 C.F.R. § 300.114(2). The IEP team may not remove a child from the regular education classroom “solely because of needed modifications in the general education curriculum.” 34 C.F.R. § 300.116(e).

 

Some common issues that we see arise related to placement and LRE include:

  • Failing to consider less restrictive placements. For example, a school district may have a separate class for students with Autism and place all students with Autism who attend the school, or a neighboring school, into the Autism class.  Another example may be a school district that automatically places students with Down syndrome, or other disability, in a segregated (separate) setting without even considering the regular education classroom first);
  • Failing to consider providing supplemental aids and services to a student with a disability in the regular education classroom and, instead, deciding the student must be educated in a segregated (separate) setting; and
  • Deciding that a child cannot be educated in a regular education classroom, because he or she is educated on the Extended Content Standards (Adapted Curriculum).

 

Implementation

 

The school must implement the IEP as written, including the specially designed instruction, related services, and any accommodations, modifications, and supports. The school must also provide parents with progress reports on the IEP goals, as often as nondisabled children receive progress reports (typically every 9 weeks).   Upon request, the school should be able to provide the parents with copies of all data collected on the IEP goals.

 

Some common issues that we see arise related to implementation include:

  • Failing to provide the services as written in the IEP;
  • Failing to provide services for what amounts to weeks during the school year (e.g., during End of Grade (EOG) testing, benchmark testing, beginning and end of the school year);
  • Failing to collect data on IEP goals; and
  • Failing to monitor if a child is actually progressing on goals and adjusting instruction accordingly.

 

Disagreements Between the Parents and the School System

 

When issues arise between parents and the school system regarding the above issues, parents have several options, ranging from informally raising the issues with the school district to filing due process, a formal lawsuit filed against the school district in the Office of Administrative Hearings.

 

Manifestation Determination Review (MDR)

 

When a student with a disability engages in activity in violation of a school’s code of conduct, in certain circumstances, the school district must conduct a manifestation determination review (MDR) to determine whether the child’s conduct was a manifestation of the child’s disability.

 

During the MDR, the school district, parent, and relevant members of the IEP Team must review all relevant information in the student’s file to determine whether the student’s conduct was either caused by, or had a direct and substantial relationship to, the child’s disability, or the result of the school district’s failure to implement the IEP. If the team determines the conduct meets either of these two conditions, the conduct is a manifestation of the child’s disability. 34 C.F.R. § 300.351(e).

 

When the conduct is a manifestation of the child’s disability, the IEP Team must return the child to the placement from which the child was removed.   Usually, this means the child is returned to school.  However, the school must take additional steps to support the student and try to proactively address the behavior, by either conducting a functional behavior assessment (FBA) and implementing a behavior intervention plan (BIP) or, if the child already had a BIP in place, review the BIP and modify as necessary. 34 C.F.R. § 300.351(f).

 

 

When does a school district conduct an MDR?

 

The school district must conduct an MDR if the child is covered under either the IDEA or Section 504.

 

The district must conduct an MDR within 10 school days of the school’s decision to change the placement of the student with a disability due to a violation of the code of conduct. 34 C.F.R. § 300.351(e).

 

A change of placement occurs if:

  1. The removal is for more than 10 consecutive school days; or
  2. The child has been subjected to a series of removals that constitute a pattern—
    1. Because the series of removals totals more than 10 school days in a school year;
    2. Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
    3. Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

34 C.F.R. § 300.356(a).

 

 

 

Exceptions:

 

Regardless of whether the behavior is determined to be a manifestation of the child’s disability, the school district may remove a student to an interim alternative educational setting for no more than 45 days if the child:

  1. Brings a weapon to school;
  2. Knowingly possesses, uses, or sells illegal drugs at school; or
  3. Has inflicted serious bodily injury upon another person while at school.

34 C.F.R. § 300.351(g).

 

Expedited Due Process Hearings:

 

If a parent disagrees with the manifestation determination, the parent may appeal the decision by requesting a due process hearing. The hearing must take place on an expedited timeline: the hearing must take place within 20 school days of the date the complaint was filed, and the hearing officer must make a decision within 10 school days of the hearing. 34 C.F.R. § 300.532.

 

Some common issues that we see arise regarding discipline of students with disabilities:

 

  • Suspending a child and then waiting the full ten (10) days to hold the MDR, rather than determine if the conduct was a manifestation of the disability before suspending the student;
  • Failing to explain to parents what Manifestation Determination Review means and the importance of the process;
  • Failing to conduct MDRs, especially for students with disabilities protected under Section 504; and
  • Failing to follow the appropriate procedure for conducting MDRs.

 

 

 

Private School Tuition Reimbursement

  • Every public school, including public charter schools, is required to offer a FAPE to the children with disabilities in its jurisdiction.
  • This can also include children who are not currently enrolled in the public school.
  • If a public school cannot meet the needs of a particular student, it is the responsibility of the public school to place the child in an appropriate private school.
  • An appropriate private school may be a local day school that specializes in serving students with particular disabilities and can also include private residential schools and therapeutic boarding schools.
  • If a public school fails to offer a student a FAPE, and the parent is forced to withdraw the student and enroll him or her in a private school, the parent can seek tuition reimbursement from the public school.
  • There are particular requirements for seeking this reimbursement that are outlined in your Parents Rights Handbook.

 

Common issues we see arise related to Private School Tuition Reimbursement:

  • Failing to provide appropriate placements to students with significant mental health issues;
  • Failing to identify students with significant mental health issues as students with disabilities and, instead, providing homebound services for medical issues;
  • Parents who are unaware that they can request a private placement;
  • Refusing to create an IEP for a student who is not enrolled; and
  • Parents who are unaware their children may be eligible for tuition reimbursement.

 

 

 

Domicile, enrollment, and school assignment:

  • A child must be domiciled in a school district in order to enroll in that school district. Domicile is different than residence, because domicile refers to one’s permanent home. There are several exceptions to the domicile requirement, including when a student is homeless.
  • Issues that can arise related to domicile, residency, and enrollment include when a child’s parents are divorced and share custody.
  • Local school boards have wide discretion when it comes to school assignment. If dissatisfied with the school assignment, parents may request a transfer to another school in the district pursuant to the local policies.

 

Common issues we see arise related to domicile, enrollment, and school assignment include:

 

  • Appeals of school assignments
  • Appeals of school transfer decisions

 

 

In North Carolina, schools may use seclusion and restraint in limited circumstances, including for safety, self-defense, and when a child’s IEP, Section 504 Plan, or Behavior Intervention Plan provides for the use of seclusion and restraint. When secluding a student, the space must be approved for such use by the school district, monitored by an adult who is able to see and hear the student at all times, appropriately lighted, ventilated, heated, and cooled, and free of objects that unreasonably expose the student or others to harm.

 

When a child is subjected to seclusion or restraint, school personnel must notify the principal if the restraint resulted in physical injury to the student or if the seclusion exceeded 10 minutes or the amount of time on the student’s behavior intervention plan. Upon notification, the principal must notify the parents. Parents also must receive a written incident report for any use of seclusion or restraint.

 

For more information about the use of seclusion and restraint, see the North Carolina law governing the issue at https://www.ncleg.net/gascripts/statutes/statutelookup.pl?statute=115C-391.1

 

Some common issues that we see arise regarding seclusion and restraint include:

 

  • Failing to document the seclusion and restraint as required;
  • Failing to notify parents as required;
  • Lack of training of school personnel administering the seclusion or restraint; and
  • Inappropriate and unnecessary use of seclusion and restraint.

Section 504 of the Rehabilitation Act of 1973 is a federal civil rights law prohibiting discrimination on the basis of disability. Section 504 applies to any program or activity that receives federal funding, which includes public school districts and public universities.

 

Specifically, Section 504 provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).

 

In order to qualify under Section 504, a student must have a physical or mental impairment that substantially limits one or more major life activities. “Major life activities” include learning, walking, seeing, hearing, speaking, breathing, and communicating.  The determination of whether the major life activity is substantially limited must be made without consideration of any mitigating measures, such as medication or assistive technology devices.

 

The Office for Civil Rights in the U.S. Department of Education enforces Section 504 with regards to protecting the rights of students with disabilities.

 

In the area of education, the requirements of Section 504 include:

  1. FAPE: School districts must provide a “free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.”
  2. LRE: Every disabled person must be educated “with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person.” Specifically, “[a] recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.”
  3. Extra-curricular and Nonacademic Settings: School districts “shall ensure that handicapped persons participate with nonhandicapped persons in such activities to the maximum extent appropriate to the needs of the handicapped person in question.”

 

 

Common issues that we see arise under Section 504 include:

  1. The failure to identify a student with a disability as eligible under Section 504.
  2. Requiring a student’s family to secure the documentation/proof of a disability.
  3. The failure to develop an appropriate Section 504 plan for a qualifying student.
  4. The failure to implement a student’s Section 504 plan, for example by not providing certain accommodations.

 

 

 

 

Title IX is a federal law that prohibits discrimination on the basis of gender in any federal funded educational institution. Educational institutions include public school districts, charter schools, public universities, and any private school or university that accepts any federal funding. Title IX protects both students and employees.

 

Title IX provides:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

 

Title IX provides protections for individuals who have experienced sexual violence or sexual harassment. Educational institutions must appropriately respond to allegations of sexual violence and sexual harassment, including conducting an investigation of the harassment. If the investigation reveals the sexual violence created a hostile environment, the educational institution must take steps to eliminate the hostile environment and ensure the sexual violence does not reoccur. Educational institutions also must make resources available to the complainant, including counseling and academic support. Title IX also prohibits retaliation against an individual who asserts his or her rights under Title IX.

 

Title IX may intersect with Section 504 and the IDEA if a student experiences sexual violence, then develops a mental health disability, the student may require special education and/or related services.

 

Requirements of Title IX include:

  1. Each educational institution must designate at least one employee to serve as Title IX coordinator.
  2. Each educational institution must notify certain individuals, including applicants for admission and employment, students and parents of elementary and secondary school students, and employees, that it does not discriminate on the basis of sex.

 

Common issues that we see arise under Title IX include:

  1. Failure of the school to properly investigate allegations of sexual assault and harassment.
  2. Failure of the school to ensure the individual who has experienced sexual harassment or assault is not subject to a hostile environment.
  3. Inequitable treatment of students based on gender.

 

 

 

Qualified individuals with disabilities enrolled in colleges and universities are protected against discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Section 504 applies any program receiving federal financial assistance, meaning it covers nearly all colleges and universities, including private and/or religious colleges and universities. The ADA does not cover religious colleges and universities.

 

A qualified individual with a disability is one who meets the required standards for admission or participation in the educational program or activity with or without reasonable accommodations. The accommodation may not fundamentally alter the program, activity, or service.

 

The requirements of colleges or universities include:

  • Changing academic requirements, for example extending the length of time permitted for the completion of degree requirements;
  • Not enforcing rules against students with disabilities, for example not enforcing a rule prohibiting tape recorders in classrooms against a student with a disability;
  • Altering the method of evaluating students’ academic achievement, for example assessing a student who cannot use her hands with an oral exam, rather than a written exam;
  • Providing students with auxiliary aids and services, including note takers, taped texts, interpreters, and adapted equipment; and
  • Providing accessible housing at the same cost as provided to nondisabled students.

 

Colleges and universities may refuse to provide accommodations only if the accommodation would create an undue financial or administrative burden, fundamentally alter the academic program, or if the accommodation is of a personal nature.

 

One major difference between elementary/secondary school and higher education is that when the student is enrolled in college, the student bears the burden of disclosing the disability and requesting accommodations from the school. Colleges and universities do not have an affirmative obligation to identify students with disabilities.

 

The requirements for demonstrating the need for a reasonable accommodation differ based on the school. A school may require proof of the disability from a medical professional.

 

Some examples of discrimination based on disability include:

  • Denying a qualified student with a disability admission to a university because of the student’s disability;
  • Excluding a qualified student with a disability from a specific course or course of study because of the student’s disability;
  • Refusing to provide a qualified student with a disability with accessible housing when the university provides housing to nondisabled students; and
  • Counseling qualified students with disabilities towards more restrictive career options than nondisabled students with similar interests and abilities.