Midwest Education Law

The U.S. Department of Education recently provided two resources designed to aid schools in interpreting the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.  The first resource is a Dear Colleague letter which highlights changes to the ADA adopted in 2008 (made effective in January 2009).  The second resource is a Questions and Answers document which provides basic information about OCR and application of the statutory amendments to students, or other individuals, who may be protected by the ADA and/or Section 504.  While neither resource can provide answers to detailed scenarios, both documents provide a good refresher on these important disability discrimination laws.  The documents also include important policy-related reminders and links to other helpful authorities. 

The Missouri General Assembly is currently considering two bills that would amend the Missouri Human Rights Act ("MHRA").  Among other things, both bills would change the legal standard applied in discrimination claims to mirror the standard applicable to similar claims under federal law.  Specifically, under the present MHRA, claimaints must demonstrate that discriminatory animus was a "contributing factor" to an adverse action by their employer.  However, SB 592 and HB 1219 would require claimaints to demonstrate that unlawful animus was a "motivating factor" for the employer's action.  Although these bills are highly controversial, proponents and opponents agree that the differing standards are important in claims involving workplace discrimination.  Also important are the caps on monetary damages contained in both bills. 

The legislature passed a similar measure last year and Governor Nixon vetoed it on May 2, 2011.  We will monitor closely all developments regarding this important debate and provide updates as appropriate. 

Debate surrounding reauthorization of the ESEA continues, with a current focus on bullying prevention and protections for lesbian, gay, bisexual and transgender students.  The U.S. Senate Health, Education, Labor and Pension Committee supported a bill in October reauthorizing the ESEA.  The bill included provisions intended to address and minimize bullying in schools, but did not include the Student Non-Discrimination Act ("SNDA") or the Saft Schools Improvement Act ("SSIA"), both designed to give express protections for LGBT students.  On November 1, 2001, a group of LGBT organizations wrote a letter to the Senate committee espressing their concerns about the reauthorization bill.  Senators sponsoring the SNDA and SSIA (Sen. Al Franken and Sen. Bob Casey, respectively) say they intend to introduce their bills during debate on the Senate floor.  Several organizations are supporting separate legislation designed to protect LGBT students, while others maintain that specific decisions about bullying protection should be made at the local level.  We'll continue monitoring this debate and the potential impact on area schools and policies. 

The U.S. Department of Education recently released a report entitled "Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics."  You can review the report here.  The report outlines common barriers that restrict students' access to physical education and extracurricular athletics.  It also contains information about resources and other data to improve participation rates among students with disabilities.  The report (including exhibits) is only 20 pages in length and may provide assistance to school officials wrestling with competing interests in this area. 

Last year, OCR issued a "Dear Colleague" letter to college and university presidents expressing concern over the increasing use of e-readers such as the Kindle and Nook to replace or supplement traditional textbooks.  According to OCR, the use of such devices violated the rights of sight-impaired students, because the devices lacked a text-to-speech function.  ("Text-to-speech" means that content on the screen will be read aloud.)

OCR recently issued a second "Dear Colleague" letter clarifying that its guidance to universities applies with equal force to elementary and secondary schools.  At the same time, OCR released answers to Frequently Asked Questions regarding its restrictions on the use of e-readers.  According to OCR, schools that provide content on e-readers must afford blind students "the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students."  Likewise, students with other disabilities must be accommodated if the use of e-readers prevents them from accessing content in an "equally effective and equally integrated manner."

One possible solution proposed by OCR is to make tablet computers (such as an iPad) available to sight-impaired students, because they generally have a text-to-speech function.  While tablets are more expensive than dedicated e-readers, their additional cost may be offset by the savings realized by replacing hardbound books with their electronic versions.  Nonetheless, OCR's guidance should be studied carefully by schools considering a shift toward electronic textbooks.

In a recent "Dear Colleague" letter, OCR reminds school districts of familiar obligations not to discriminate against students in enrollment practices.  The reminder is targeted at practices which "chill or discourage" the enrollment of students based on actual or perceived citizenship or immigration status.  The letter then provides examples of appropriate and inappropriate information to consider when enrolling a student.  A footnote also highlights special treatment for homeless students. 

While the letter is unremarkable in terms of new developments, it contains pertinent information about student residency issues.  These can by thorny questions and OCR's guidance may prove helpful before the 2011-12 school year. 

Missouri Governor Jay Nixon has vowed to veto legislation recently passed by the General Assembly that would amend the Missouri Human Rights Act (MHRA), Senate Bill 188.  The MHRA prohibits discrimination and harassment by employers, including school districts, based on protected categories such as race and gender. 

In recent years, Missouri courts have interpreted the MHRA broadly and held that an employer is liable for discrimination when a protected category is a “contributing factor” in an adverse action.  Under federal law, the standard for liability is a “motivating factor.”  This seemingly minor wording difference has meant much greater risk to school districts and other employers who are accused of discrimination or harassment.  The amendment approved by the General Assembly would align Missouri's standard for liability with the federal standard.  The amendment would also eliminate the availability of punitive damages against school districts, among other changes.

In a statement, Gov. Nixton stated "This bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated," Gov. Nixon said. "That is unacceptable."  Gov. Nixon will outline his specific objections and take formal action on Senate Bill 188 at a public setting on Friday, April 29, 2011.

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act ("GINA").  In adopting GINA, Congress noted the achievements in genetic research and the potential benefits to medicine.  However, Congress was also mindful about potential misuses of genetic information in health insurance and employment.  GINA addresses these concerns by prohibiting discrimination based on genetic information and restricting aquisition and disclosure of such information. 

GINA required the EEOC to promulgate implementing regulations.  The EEOC issued proposed regulations on March 2, 2009 and sought comment from the public.  Comments were also solicited at a public hearing attended by interested stakeholders.  The EEOC has now issued their final regulations, which become effective January 10, 2011.  Like many administrative regulations, these regulations track the statute closely and provide clarification of unique terms and provisions.  The regulations provide additional background about the statute and are designed to capture the intent of Congress.  The EEOC's press release also provides insight into the the new regulations which may prove helpful to school administrators. 

If your encounters with the Department of Education's Office for Civil Rights ("OCR") have been more frequent lately, you're not alone.  After reviewing data obtained under FOIA, the Associated Press reports that OCR received nearly 7,000 complaints this fiscal year, representing an 11% increase over last year.  Common allegations include discipline disparities based on race (particularly in connection with zero-tolerance policies), discrimination against students with disabilities, concerns regarding food allergies and intolerances and mistreatment of English language learners. 

In the article, OCR acknowledges that most school officials do not intentionally discriminate against students.  Rather, problems arise when school officials misunderstand their responsibilities under the non-discrimination statutes enforced by OCR.  This is a timely reminder that unintentional disparities are also unlawful and great care should be taken to assure complete compliance with all non-discrimination policies and statutes.  Administrators and teachers alike should always be familiar with their obligations under these authorities and conscious of good faith behavior which may inadvertently lead to discriminatory results.