The ADA in the Classroom: Of Reasonable Accommodations and Gross Misjudgments Mark C. Weber DePaul University College of Law June, 2015 (c) Mark C. Weber

The ADA in the Classroom:Of Reasonable Accommodations

and Gross Misjudgments

Mark C. Weber

DePaul University College of Law

June, 2015

(c) Mark C. Weber 2015

Issues to Consider

• Section 504-ADA Duties for Covered Children: Appropriate Education and More

• Section 504-ADA in the Seventh Circuit and Illinois

• Of Reasonable Accommodations and Gross Misjudgments: Challenging Limits on 504-ADA Obligations and Remedies


Appropriate Education Under Section 504-ADA

• Meeting Needs “as Adequately” as Needs of Others Are Met (504 Regs; Mark H.)

• Higher or Lower than IDEA, or Both?• Cases Requiring Dismissal When IDEA

Claim Fails?


Access and Accommodation Under Section 504 and ADA

• Communication, Auxiliary Services, Service Animals, Integration

• Protection from Exclusion, Segregation• Protection from Harassment• Student Discipline Protections • Retaliation


Selected 504-ADA Cases in 7th Circuit & Illinois

• Timms v. Metro. Sch. Dist. (7th Cir.1983)• Washington v. Ind. High Sch. Athletic

Ass’n, Inc. (7th Cir. 1999)• CTL ex rel. Trebatoski v. Ashland School

District (7th Cir. 2014) • Stanek v. St. Charles Cmty. Unit Sch. Dist.

No. 303 (7th Cir. 2015) • Zachary M. v. Bd. of Educ. (N.D. Ill. 2011)


More 7th Cir. & Illinois 504-ADA

• B.J. v. Homewood Flossmoor Cmty. High Sch. Dist. No. 233 (N.D. Ill. 2013)

• K.P. v. City of Chi. Sch. Dist. 299 (N.D. Ill. 2015)

• Exhaustion Cases


So About Gross Misjudgment• At the heart of Section 504 and the ADA:

Prohibiting unintentional discrimination and requiring reasonable accommodation

• Title II ADA & Section 504 remedies are those of Title VI, but . . .

• Intent-deliberate indifference-something more than IDEA-bad-faith-gross misjudgment standards shouldn’t apply

• Use ordinary remedy principles for damages cases


At the Heart of the ADA: Unintended Discrimination and Reasonable Accommodation

Animus-based discrimination is also prohibited, but a showing of animus is not required to make out a violation. Alexander v. Choate


The ADA Bars Unintentional Disability Discrimination

• ADA Title I Cases• Olmstead v. L.C. ex rel. Zimring• PGA Tour v. Martin


504-ADA Remedies Are Those of Title VI

Monetary relief is available for Title VI violations only when intentional, animus-based discrimination is shown, and no private right of action exists even for injunctive relief when the discrimination is unintentional. Alexander v. Sandoval


But . . .• But the reason for that holding is that only

intentional discrimination actually violates Title VI, whereas the simple failure to accommodate is what actually violates Title II and the ADA.

• For actual violations of Title VI or Title II or Section 504, monetary relief is permitted.


The bad-faith or gross- misjudgment standard . . .

The bad-faith or gross-misjudgment standard derives from a 1982 court of appeals case, Monahan v. Nebraska, that erroneously required intent for section 504 violations in the context of K-12 education.


Is Wrong

If that decision was ever correct, it was superseded by the Handicapped Children’s Protection Act in 1986, and is certainly wrong now.


Monetary relief may, but not always will, be appropriate

• Barnes v. Gorman• Poway Unified Sch. Dist. v. K.C.


504-ADA Sources I• 34 C.F.R. §§ 104.33 (“as adequately,” etc.), .34 (educational setting), .35 (evaluation & placement), .36

(procedural safeguards), .37 (nonacademic services) • Questions and Answers on Disability Discrimination under Section 504 and Title II, http://

www2.ed.gov/about/offices/list/ocr/qa-disability.html• Dear Colleague Letter: Students with Disabilities in Extracurricular Athletics, http://

www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201301-504.html• Nondiscrimination on the Basis of Disability in State and Local Government Services Under ADA Title II, 28 C.F.R.

Part 35, 75 Fed. Reg. 56164 (Sept. 15, 2010, effective Mar. 15, 2011) • Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008) (applying “as adequately”)• Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010) (upholding as-adequately and accommodations claims)• K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9 th Cir. 2013) (upholding claim for CART services

under ADA access-to-communications regulation), cert. denied, 134 S. Ct. 1494 (2014)• J.T. v. Mo. State Bd. of Educ., No. 4:08CV1431, 2009 WL 262094 (E.D. Mo. Feb. 4, 2009) (upholding claim for

audio-visual monitoring as accommodation)• Borough of Palmyra Bd. Of Educ. v. F.C., 2. F. Supp. 2d 637 (D.N.J. 1998) (requiring payment for private

placement under § 504)• S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981) • Timms v. Metropolitan Sch. Dist., 722 F.2d 1310, 1317–18 (7th Cir.1983) (“[T]he Rehabilitation Act is broader than

the [IDEA] in the range of federally-funded activities it reaches, but narrower in the kind of actions it regulates.”) Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 846 (7th Cir. 1999) (affirming preliminary injunction against application of eight-semester athletic eligibility rule to student held back on account of disability; stating: “We cannot accept the suggestion that liability under Title II of the Discrimination Act must be premised on an intent to discriminate on the basis of disability.”)

• CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524 (7th Cir. 2014) (affirming summary judgment in favor of school district in case concerning accommodations for student with diabetes; separating reasonable accommodation and intentional discrimination claims; not applying bad faith-gross misjudgment standard)


http://www2.ed.gov/about/offices/list/ocr/qa-disability.html

http://www2.ed.gov/about/offices/list/ocr/qa-disability.html

http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201301-504.html



504-ADA Sources II• Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634 (7th Cir. 2015) (vacating dismissal in part in

action by 20-year-old with autism and parents, reasoning that student’s claims under Section 504 and ADA should not have been dismissed when student alleged that because of his autism and need for extra attention teachers tried to push him out of their classes, refused to comply with his IEP, and required him to work on group projects when disability prevented working in group, causing him loss of educational opportunity)

• Zachary M. v. Bd. of Educ., 829 F. Supp. 2d 649 (N.D. Ill. 2011) (in case alleging inadequate accommodations for child with attention deficit hyperactivity disorder, requiring intentional discrimination, stating that intent may be inferred from deliberate indifference, and ruling in favor of school district)

• B.J. v. Homewood Flossmoor Cmty. High Sch. Dist. No. 233, 999 F. Supp. 2d 1093 (N.D. Ill. 2013) (denying state board of education’s motion to dismiss action in which parents alleged that state board of education and state superintendent violated Section 504 by not allowing reimbursement for placement of students with severe obsessive compulsive disorder at any educational facility equipped to address their disability; holding that injury to plaintiffs was fairly traceable to defendant board and redressable, even though hearing officer ruled that plaintiffs’ proposed placement was not appropriate under IDEA, accepting inference that school district refused to place child there because it was not approved by state board and district likely would agree to placement if it were approved)

• K.P. v. City of Chi. Sch. Dist. 299, No. 14 C 7296, 2015 WL 832355 (N.D. Ill. Feb. 25, 2015) (in case of eighth grader with learning disability and visual processing disorder seeking accommodation of allowing use of hand-held calculator in Measure of Academic Progress test administered on computer and used for admission to magnet, charter, and special interest programs, denying preliminary injunction, reasoning that plaintiffs failed to show likelihood of success on reasonableness of accommodation because it would substitute artificial intelligence for skill sought to be tested and would impose burden of invalidating test)

• Charlie F. v. Board of Educ. of Skokie Sch. Dist., 98 F.3d 989 (7th Cir. 1996)• Payne v. Peninsula Sch. Dist., 653 F.3d 863 (9th Cir. 2011)


504-ADA Sources III• Alexander v. Choate, 469 U.S. 287 (1985)• US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)• EEOC v. Autozone, Inc., 707 F.3d 824 (7th Cir. 2013)• Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).• PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)• Alexander v. Sandoval, 532 U.S. 275 (2001)• Monahan v. Nebraska, 687 F.2d 1164 (8th Cir. 1982)• Smith v. Robinson, 468 U.S. 992 (1984)• 20 U.S.C. § 1415(l) (“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and

remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”)

• Barnes v. Gorman, 536 U.S. 181 (2002)• Poway Unified Sch. Dist. v. K.C., No. 10CV897, 2014 WL 129086 (S.D. Cal. Jan. 14, 2014)• Mark C. Weber, A New Look at Section 504 and the ADA in Special Education Cases, 16 Tex. J. on C.L & C.R. 1

(2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636483, Procedures and Remedies Under Section 504 and the ADA for Public School Children with Disabilities, 32 J. Nat’l Ass’n Admin. L. Judiciary 611 (2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2157652, Accidentally on Purpose: Intent in Disability Discrimination Law, B.C. L. Rev. (forthcoming, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579263


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636483



Documents

The ADA in the Classroom: Of Reasonable Accommodations and Gross Misjudgments Mark C. Weber DePaul University College of Law June, 2015 (c) Mark C. Weber