xxxx xxxx, xxxx sara bonser, superintendent 2700 w. 15th ... · student a free appropriate public...
TRANSCRIPT
XXXX XXXX, XXXX
Sara Bonser, Superintendent
Plano Independent School District
2700 W. 15th Street
Plano, Texas 75075-5898
RE: OCR Case No. 06161053
Plano Independent School District
Dear Superintendent Bonser:
The U.S. Department of Education (Department), Office for Civil Rights (OCR), Dallas Office,
has completed its investigation of the above-referenced complaint filed against the Plano
Independent School District (District), which was received in our office on XXXX XXXX,
XXXX. On XXXX XXXX, XXXX, the District and the complainant commenced an attempt to
resolve this complaint via the Early Complaint Resolution (ECR) process. On XXXX XXXX,
XXXX, ECR was terminated without resolution and OCR resumed conducting the investigation.
The complainant alleged that the District discriminated against her son (the Student) on the basis
of disability and retaliated against the Student and the Student’s parents.
Specifically, the complainant alleged:
1. The District subjected the Student to disability discrimination when during XXXX XXXX,
XXXX XXXX, XXXX XXXX, XXXX XXXX and XXXX XXXX, it failed to evaluate the
Student despite the Student’s parents’ requests for evaluation.
2. The District subjected the Student to disability discrimination when, during the XXXX and
XXXX school years, it failed to evaluate the Student despite a change in the Student’s
medical condition (i.e., XXXX XXXX, XXXX XXXX, XXXX XXXX, XXXX XXXX),
which significantly impacted the Student’s major life activities.
3. The District subjected the Student to disability discrimination when it failed to provide the
Student’s parents notice of procedural safeguards in XXXX XXXX, XXXX XXXX and
XXXX XXXX, when the parents requested an evaluation of the Student.
4. The District subjected the Student to disability discrimination when, in or about XXXX
XXXX, the District refused to allow the Student’s parent to review his educational file.
5. The District subjected the Student to disability discrimination during XXXX XXXX through
XXXX XXXX by failing to follow evaluation and placement procedures consistent with
Page 2 – Resolution Letter to Recipient OCR Ref. 06-16-1053
requirements under Section 504 when the Student’s Section 504 committee failed to consider
information from a variety of sources (e.g., information regarding the Student’s health
conditions, medical history and documentation, and other applicable data about the Student),
during evaluations of the Student.
6. The District subjected the Student to disability discrimination when during the XXXX school
year, XXXX XXXX XXXX XXXX, and the XXXX school year, teachers and staff at
XXXX XXXX and XXXX failed to fully implement the Student’s Section 504 Plan (e.g.,
extra time to complete missed assignments, contact parents regarding missed assignments,
provide parents copies of calendars and rubrics, inform parents of dates of makeup exams,
send Student to nurse if not feeling well or showing signs of XXXX XXXX, extended time
for major tests and projects, extended time to make up assignments, small group testing,
frequent breaks during lengthy tests and assignments, may provide makeup work prior to
absence of three days, collaborate with parents to schedule makeup tests, teacher notes when
Student is absent, meet and discuss medical plan upon receipt of updated medical
information, hold a meeting to ensure all teachers aware of Student’s health needs).
7. The District subjected the Student to different treatment due to his disability in XXXX
XXXX by excluding him from the International Baccalaureate Program (IB) Honors
Programs (the educational program, XXXX XXXX XXXX, XXXX XXXX XXXX) and the
National Honor Society club.
8. The District subjected the Student to different treatment due to his disability in XXXX
XXXX and XXXX XXXX when the Student’s parents were tasked with arranging field trips
and action plans/health plans in order for the Student to participate in XXXX XXXX XXXX
(XXXX) and the Student’s parent was told the Student would not be able to attend XXXX
XXXX XXXX XXXX because the Student’s potential need for use of the Epi Pen could not
be accommodated.
9. Because the Student’s parents filed grievances against the District and District employees
and advocated on behalf of the Student, staff and administrators retaliated against the
Student’s mother during the XXXX school year, by refusing to respond to the Student’s
mother’s emails and requests for information and resources, excluding her from
communication and input related to Section 504, and refusing to provide her calendars and
rubrics.
10. Because the Student’s parents filed grievances against the District and District employees
and advocated on behalf of the Student, the District retaliated against the Student in XXXX
XXXX by excessively pulling him out of class “without cause” and “over-scrutinizing” him.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (Section 504), 29
U.S.C. § 794 (amended 1992), and its implementing regulation at 34 C.F.R. Part 104, which
prohibit discrimination on the basis of disability by recipients of Federal financial assistance.
OCR also enforces Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. §
12132, and its implementing regulation at 28 C.F.R. Part 35. Under Title II, OCR has
jurisdiction over complaints alleging disability discrimination against certain public entities.
Page 3 – Resolution Letter to Recipient OCR Ref. 06-16-1053
Additionally, the regulations implementing Section 504 and Title II prohibit retaliation at 34
C.F.R. §104.61 and 28 C.F.R. §35.134, respectively. The District is a recipient of Federal
financial assistance from the Department and is a public elementary and secondary education
system. Therefore, OCR has jurisdictional authority to process this complaint under Section 504
and Title II.
OCR opened the following issues for investigation:
1. Whether the District discriminated against the Student on the basis of disability by failing
to evaluate the Student’s need for regular or special education and related aids and
services despite having notice that, because of the Student’s alleged disabilities, the
Student needed or was believed to need such aids and services, and thereby denied the
Student a free appropriate public education during XXXX XXXX, and the XXXX and
XXXX school years, in violation of Section 504 and Title II and their implementing
regulations, at 34 C.F.R. §§ 104.33 and 104.35, and 28 C.F.R. § 35.130, respectively.
2. Whether the District discriminated on the basis of disability during XXXX XXXX and
during the XXXX school year by failing to provide the Student’s parents procedural
safeguards (i.e., notice of procedural safeguards and an opportunity to examine relevant
records), in violation of Section 504 and Title II, at 34 C.F.R. § 104.36, and 28 C.F.R. §
35.130, respectively.
3. Whether the District discriminated against the Student on the basis of disability by failing
to follow appropriate procedures when evaluating the Student (i.e., draw upon
information from a variety of sources) during XXXX XXXX through XXXX XXXX, in
violation of the Section 504 and Title II implementing regulations, at 34 C.F.R. § 104.35,
and 28 C.F.R. § 35.130, respectively.
4. Whether the District discriminated against the Student on the basis of disability by failing
to provide regular or special education and related aids and services deemed necessary to
meet the Student’s individual educational needs (i.e., copies of calendars and rubrics to
Student’s parents during the XXXX school year, implementation of the Student’s Health
Plan during XXXX XXXX, and each of the accommodations listed in the Student’s 504
Plan during the XXXX school year), and thereby denied the Student a free appropriate
public education during the XXXX and XXXX school years, in violation of Section 504
and Title II and their implementing regulations, at 34 C.F.R. § 104.33 and 28 C.F.R. §
35.130, respectively.
5. Whether the District treated the Student differently on the basis of disability in the
context of an educational program or activity without a legitimate, nondiscriminatory
reason, and thereby, interfered with or limited the ability of the Student to participate in
or benefit from the services, activities or privileges provided by the District during
XXXX XXXX, XXXX XXXX and XXXX XXXX, in violation of Section 504, at 34
C.F.R. § 104.4, and Title II, at 28 C.F.R. § 35.130.
Page 4 – Resolution Letter to Recipient OCR Ref. 06-16-1053
6. Whether the District retaliated against the Student and his parents by refusing to respond
to the Student’s mother’s emails and requests for information and resources, excluding
her from communication and input related to Section 504, refusing to provide the
Student’s mother calendars and rubrics during the XXXX school year and excessively
pulling the Student out of class and “over-scrutinizing” him during XXXX, because the
Student’s parents filed grievances and advocated for the Student, in violation of Section
504 at 34 C.F.R. § 104.61 and Title II at 28 C.F.R. § 35.134.
As a preliminary matter, a finding that a recipient has violated one of the laws that OCR enforces
must be supported by a preponderance of the evidence (i.e., sufficient evidence to prove that it is
more likely than not that unlawful discrimination occurred). If there is a significant conflict in
the evidence and OCR is unable to resolve that conflict, for example, due to the lack of
corroborating witness statements or additional evidence, OCR generally must conclude that there
is insufficient evidence to establish a violation of the law. In conducting this investigation, OCR
reviewed documentation provided by the complainant and the District, and interviewed the
Student’s teachers, administrators and other support staff.
Issue 1
Whether the District discriminated against the Student on the basis of disability by failing to
evaluate the Student’s need for regular or special education and related aids and services
despite having notice that, because of the Student’s alleged disabilities, the Student needed or
was believed to need such aids and services, and thereby denied the Student a free appropriate
public education during XXXX, and the XXXX and XXXX school years, in violation of Section
504 and Title II and their implementing regulations, at 34 C.F.R. §§ 104.33 and 104.35, and 28
C.F.R. § 35.130, respectively.
Legal Standard
Under the Section 504 and Title II implementing regulations, at 34 C.F.R. § 104.33(a) and 28
C.F.R. § 35.130, respectively, a public school district that receives Federal financial assistance
from the Department (recipient) must provide a free and appropriate education (FAPE) to each
qualified student with a disability in the district’s jurisdiction. The Section 504 regulations’
evaluation procedures, at 34 C.F.R. § 104.35(a) and (b), state that a recipient must evaluate any
student who, because of disability, needs or is believed to need special education or related
services before taking any action with respect to the student’s initial educational placement and
any subsequent significant change in that placement. The Section 504 regulations do not specify
how quickly an evaluation must be completed after a recipient obtains notice that a student needs
or is believed to need special education or related services. As a result, OCR applies a
“reasonableness” standard to determinations regarding the timeliness of evaluations. Under
Section 504 and Title II, at 34 C.F.R. § 104.3(j) and 28 C.F.R. § 35.104, respectively, a student is
“disabled,” and therefore entitled to individually prescribed special education or related aids and
services, if the student has a physical or mental impairment that substantially limits a major life
activity.
Page 5 – Resolution Letter to Recipient OCR Ref. 06-16-1053
Findings of Fact and Analysis
With regard to the alleged failure to evaluate the Student in XXXX and XXXX, in the
notification letter dated XXXX XXXX, XXXX, OCR informed the complainant that it granted
her request for a waiver of the 180 days filing requirement for these untimely allegations. OCR
granted the waiver based on information from the complainant stating that the allegations had
been included in a mediation between the complainant and the District “which ended on XXXX
XXXX, XXXX.” However, during the course of this OCR investigation, OCR determined that
the mediation between the complainant and the District concluded on XXXX XXXX, XXXX.1
Consequently, the waiver is applicable only to allegations filed with OCR within sixty days after
XXXX XXXX, XXXX, i.e., filed by XXXX XXXX, XXXX. However, the complainant did not
file these allegations with OCR until XXXX XXXX, XXXX. Therefore, OCR concluded that
the waiver is not applicable to these untimely allegations. OCR has dismissed these allegations
and will take no further action with regard to them.
With regard to the remaining allegations of failure to evaluate the Student, OCR found that, from
XXXX XXXX until XXXX XXXX, XXXX, the Student’s parents were involved in mediation
negotiations with the District, which included an agreement to put on hold the Student’s next
Section 504 meeting until the conclusion of the mediation. After the mediation on XXXX
XXXX, XXXX, was unsuccessful, the District sent notice of a Section 504 meeting to the
Student’s parents. On XXXX XXXX, XXXX, the Section 504 Committee met and re-evaluated
the Student’s eligibility, his Section 504 plan, and his transition to XXXX. The meeting ended
in agreement regarding a Section 504 plan for the Student. Based on the Student’s Section 504
Plan, Section 504 meeting notes, and OCR’s interviews of the Student’s Section 504 committee
members, OCR determined that the District’s XXXX XXXX evaluation of the Student was
conducted by a group of persons, including the Student’s parents, knowledgeable about the
Student and the meaning of his evaluation data and placement options identified the Student as a
student with a disability and made placement decisions for him as documented in his Section 504
Plan. Additionally, the Section 504 Plan contained the Student’s parents’ signatures indicating
that they participated in the Section 504 committee meeting that resulted in the XXXX XXXX,
XXXX, Section 504 Plan.
The evidence indicated that, during the mediation period, the Student’s parents had also
expressed interest in a special education (SPED) evaluation. Consequently, upon termination of
the mediation in XXXX XXXX, the District’s Special Education Coordinator (SPED
Coordinator) emailed the Student’s parents requesting a meeting to discuss an initial special
1 In a letter dated XXXX XXXX, XXXX, addressed to the complainant’s attorney and the District’s attorney, the
mediator acknowledged that the parties were unable to reach an agreement during the mediation session held on
XXXX XXXX, XXXX, and reminded them of the right to address their disagreement through a due process hearing.
Further evidence that the mediation ended on XXXX XXXX, XXXX, is the fact that the parties agreed to put on
hold the Student’s Section 504 meeting during the mediation period, but during the week of XXXX XXXX, XXXX,
the parties resumed scheduling the Section 504 meeting, which was held on XXXX XXXX, XXXX. Also,
consistent with the parties’ agreement to abate all grievances during the mediation period, the complainant abstained
from filing any grievances during XXXX through XXXX XXXX, but in XXXX XXXX, the complainant filed a
Level I grievance with the District.
Page 6 – Resolution Letter to Recipient OCR Ref. 06-16-1053
education evaluation, and the District’s Section 504 Coordinator (504 Coordinator) emailed the
Student’s parents regarding the District's offer to conduct a full independent evaluation (FIE) of
the Student. On XXXX XXXX, XXXX, the Student’s parents provided the District a medical
certificate regarding the Student's potential absences due to his disabilities. The parties did not
find a mutually agreeable time to meet and discuss the details of a SPED evaluation until XXXX
XXXX, XXXX. Further, the Student’s parents denied consent for the District to obtain an
independent evaluation of the Student, stating that they (the parents) had already obtained a
private FIE.
On XXXX XXXX, XXXX, the Student’s parents provided the District a copy of their privately
obtained FIE. During XXXX XXXX, the District requested (and the Student’s parents denied)
consent from the Student’s parents to communicate with the medical professionals who were
involved in the Student’s FIE, and the Student’s parents informed the District that they were no
longer interested in the Student being evaluated for special education services; the Student’
parents wanted information from the private FIE to be used in revising the Student’s 504 Plan.
The District informed the Student’s parents that it was required to follow through with a SPED
evaluation but that, if the Student is found eligible for SPED services, the parents could choose
to not accept SPED services for the Student. The District also informed the Student’s parents
that a Section 504 meeting would be held shortly after the completion of the special education
determination. In mid- XXXX XXXX, the Student’s parents provided medical documentation
regarding the Student’s XXXX condition along with a letter to teachers regarding the Student's
medication plan. The parties did not find a mutually agreeable time to meet for the special
education Admission Review and Dismissal (ARD) meeting until XXXX XXXX, XXXX, which
resulted in a determination that the Student did not qualify to receive special education services
under the Individuals with Disabilities Education Act (IDEA).
On XXXX XXXX, XXXX, the Student’s Section 504 committee met to review the Student’s
accommodations with consideration of information from the Student’s FIE and other medical
documentation regarding the Student. OCR determined that the District’s XXXX XXXX
evaluation of the Student was conducted by a group of persons, including the Student’s parents,
knowledgeable about the Student and the meaning of his evaluation data and placement options
identified the Student as a student with a disability and made placement decisions for him as
documented in his Section 504 Plan. Additionally, the Section 504 Plan contained the Student’s
parents’ signatures indicating that they participated in the Section 504 committee meeting that
resulted in the XXXX XXXX, XXXX, Section 504 Plan and the meeting ended in agreement
regarding the Student’s accommodations.
The District informed OCR that, despite the Student’s parents’ rescinded request for a special
education evaluation in XXXX XXXX, during the XXXX XXXX semester the Student’s parents
continued to make reference to their interest in obtaining special education services for the
Student. Email correspondence and other documentation provided by the complainant and the
District showed that, on XXXX XXXX, XXXX, the Student’s parents provided the District an
Other Health Impairment Report regarding the Student’s disabilities (XXXX and XXXX
XXXX). On XXXX XXXX , XXXX (and three more times during XXXX and XXXX XXXX),
the District sent to the Student’s parents a notice of a special education ARD meeting for the
Student. The ARD committee met on XXXX XXXX, XXXX, but ended in recess upon the
Page 7 – Resolution Letter to Recipient OCR Ref. 06-16-1053
Student’s parents’ request. The ARD committee reconvened on XXXX XXXX, XXXX, and
ended with the Student’s parents’ decision to not provide consent for special education services.
Therefore, the Student was never designated a student that receives special education services.
OCR determined that the District evaluated the Student in accordance with Section 504
requirements as the evidence showed the Section 504 committee determined that he was a
qualified individual with a disability as defined by Section 504 and that the Student’s needs were
determined on an individualized basis by a group of persons knowledgeable about the student
and the information considered. OCR concluded that there is insufficient evidence that the
District failed to evaluate the Student’s need for regular or special education and related aids and
services during XXXX and XXXX XXXX, XXXX XXXX, and the XXXX school year.
Issue 2
Whether the District discriminated on the basis of disability during XXXX XXXX and during
the XXXX school year by failing to provide the Student’s parents procedural safeguards (i.e.,
notice of procedural safeguards and an opportunity to examine relevant records), in violation of
Section 504 and Title II, at 34 C.F.R. § 104.36, and 28 C.F.R. § 35.130, respectively.
Legal Standard
The Section 504 regulations, at 34 C.F.R. § 104.36, provide that:
[a] recipient that operates a public elementary or secondary education program or
activity shall establish and implement, with respect to actions regarding the
identification, evaluation, or educational placement of persons who, because of
handicap, need or are believed to need special instruction or related services, a
system of procedural safeguards that includes notice, an opportunity for the
parents or guardian of the person to examine relevant records, an impartial
hearing with opportunity for participation by the person’s parents or guardian and
representation by counsel, and a review procedure.
OCR interprets the general prohibition against discrimination in the Title II implementing
regulations to require the provision of a FAPE to the same extent that the Section 504
implementing regulations specifically require the provision of a FAPE.
Findings of Fact and Analysis
With regard to the alleged failure to provide notice of procedural safeguards in XXXX XXXX,
XXXX XXXX, and XXXX XXXX, OCR concluded that these untimely allegations, which
initially were granted a waiver, are not appropriate for investigation. OCR has dismissed these
allegations and will take no further action with regard to them. (For more information about
OCR’s dismissal of the untimely allegations, see Issue 1, above.)
With regard to the alleged failure to provide an opportunity to examine relevant records in v
XXXX, according to the District’s Board Policy FH, students’ education records (defined as
records that are directly related to a student) are maintained at the campus where the student
Page 8 – Resolution Letter to Recipient OCR Ref. 06-16-1053
attends and the campus principal acts as the custodian of records for all currently enrolled
students. If a parent has a request for an education record, the parent is required to make the
request directly to the campus either by fax, email, or in person. The campus would then copy
the records and inform the parent that they may retrieve the files at the campus. In contrast, a
request for public records from the District made pursuant to the Texas Public Information Act
must go through the District’s Open Records Department.
OCR found no evidence that the District failed to provide the Student’s parents access to the
Student’s education record during XXXX XXXX. Correspondence between the District and the
Student’s parents indicated that, on or around XXXX XXXX, XXXX, the District informed the
Student’s parents that the contents of the Student’s Section 504 file was available to be picked up
from the campus where the Student had been enrolled during the XXXX school year, and that
the Student’s parents received such documents from the Student’s Section 504 file in mid-
XXXX XXXX. The correspondence also indicated that, on XXXX XXXX, XXXX, the District
provided to the Student’s parents the documentation and committee notes from the Student’s
XXXX XXXX Section 504 meeting. Additionally, the evidence showed that, on XXXX XXXX,
XXXX, the Student’s parents submitted to the District’s Open Records Department a request for
sixty-four (64) items of information “pursuant to the Texas Public Information Act” (i.e., for
public records) but there was no evidence that the Student’s parents submitted any requests for
the Student’s education record in accordance with Board Policy FH during XXXX XXXX.
OCR concluded that there is insufficient evidence that the District failed to provide the Student’s
parents procedural safeguards (i.e., an opportunity to examine relevant records) in XXXX
XXXX.
Issue 3
Whether the District discriminated against the Student on the basis of disability by failing to
follow appropriate procedures when evaluating the Student (i.e., draw upon information from a
variety of sources) during XXXX XXXX through XXXX XXXX, in violation of the Section 504
and Title II implementing regulations, at 34 C.F.R. § 104.35, and 28 C.F.R. § 35.130,
respectively.
Legal Standard
The Section 504 regulations, at 34 C.F.R. § 104.35(c), provide that:
In interpreting evaluation data and in making placement decisions, a recipient
shall (1) draw upon information from a variety of sources, including aptitude and
achievement tests, teacher recommendations, physical condition, social or cultural
background, and adaptive behavior, (2) establish procedures to ensure that
information obtained from all such sources is documented and carefully
considered, (3) ensure that the placement decision is made by a group of persons,
including persons knowledgeable about the child, the meaning of the evaluation
data, and the placement options . . . .
Page 9 – Resolution Letter to Recipient OCR Ref. 06-16-1053
OCR interprets the general prohibition against discrimination in the Title II implementing
regulations to require the provision of a FAPE to the same extent that the Section 504
implementing regulations specifically require the provision of a FAPE.
Findings of Fact and Analysis
With regard to the alleged failure to follow appropriate procedures when evaluating the Student
during XXXX XXXX through XXXX XXXX, XXXX, OCR concluded that these untimely
allegations, which initially were granted a waiver, are not appropriate for investigation. OCR
has dismissed these allegations and will take no further action with regard to them. (For more
information about OCR’s dismissal of the untimely allegations, see Issue 1, above.)
With regard to the alleged failure to follow appropriate procedures when evaluating the Student
during XXXX XXXX , XXXX through XXXX XXXX, OCR found one evaluation occurred
during this timeframe – on XXXX XXXX, XXXX. OCR’s review of documentation from the
Student’s XXXX XXXX, XXXX, Section 504 meeting revealed that the Student’s Section 504
committee consisted of a group of six District employees and the Student’s two parents. Based
on the titles/descriptions of the committee members and information provided by them, OCR
determined that the committee included persons knowledgeable about the Student, the meaning
of the evaluation data, and the placement options. During OCR’s interviews of members of the
Section 504 Committee, they reported that the committee considered information about the
Student’s academic record, medical record, documentation and information provided by the
Student’s parents, and information from the Student’s teachers. OCR reviewed documentation
from the Student’s XXXX XXXX, XXXX, Section 504 meeting and verified that the Section
504 committee’s placement decisions were based on consideration of a variety of sources,
including but not limited to the Student’s grades, health/medical information, attendance reports,
assessment history, teacher input and the Student’s parents’ concerns, and confirmed that these
sources were documented.
Based on the evidence, OCR determined that the Student’s Section 504 Committee placement
decisions were made in compliance with the procedural requirements of Section 504. Therefore,
OCR concluded that there is insufficient evidence that the District failed to follow appropriate
procedures when evaluating the Student by failing to draw upon information from a variety of
sources when it made placement decisions for the Student on XXXX XXXX, XXXX.
Issue 4
Whether the District discriminated against the Student on the basis of disability by failing to
provide regular or special education and related aids and services deemed necessary to meet the
Student’s individual educational needs (i.e., copies of calendars and rubrics to Student’s parents
during the XXXX school year, implementation of the Student’s Health Plan during XXXX
XXXX, and each of the accommodations listed in the Student’s 504 Plan during the XXXX
school year), and thereby denied the Student a free appropriate public education during the
XXXX and XXXX school years, in violation of Section 504 and Title II and their implementing
regulations, at 34 C.F.R. § 104.33 and 28 C.F.R. § 35.130, respectively.
Page 10 – Resolution Letter to Recipient OCR Ref. 06-16-1053
Legal Standard
Under the Section 504 and Title II implementing regulations, at 34 C.F.R. § 104.33(a) and 28
C.F.R. § 35.130, respectively, a public school district that receives Federal financial assistance
from the Department (recipient) must provide a FAPE to each qualified student with a disability
in the district’s jurisdiction. The Section 504 regulations, at 34 C.F.R. § 104.33(b), define an
“appropriate education” as the provision of regular or special education and related aids and
services that (i) are designed to meet the individual educational needs of disabled persons as
adequately as the needs of nondisabled persons are met, and (ii) are based upon adherence to
procedures that satisfy Section 504 requirements. Compliance with this provision is generally
determined by assessing whether a district has implemented a student’s Section 504 plan, also
known as an “individualized education program,” or “IEP.”
When evaluating whether a district has failed to provide the related aids and services deemed
necessary to provide the student a FAPE, OCR determines: (1) whether the district evaluated the
student in accordance with Section 504 requirements and determined that the student was a
qualified individual with a disability as defined by Section 504; (2) whether the student’s needs
were determined on an individualized basis by a group of persons knowledgeable about the
student and the information considered; and (3) whether the placements, aids, and services
identified by the district through this process as necessary to meet the student’s individual needs
were or are being provided. If they have not been provided, OCR will determine the district’s
reason for failing to do so and the impact of the failure.
OCR interprets the general prohibition against discrimination in the Title II implementing
regulations to require the provision of a FAPE to the same extent that the Section 504
implementing regulations specifically require the provision of a FAPE.
Findings of Fact and Analysis
With regard to the alleged failure to provide regular or special education and related aids and
services to the Student during XXXX XXXX through XXXX XXXX, XXXX, OCR concluded
that this untimely allegation, which initially was granted a waiver, is not appropriate for
investigation. OCR has dismissed this allegation and will take no further action with regard to it.
(For more information about OCR’s dismissal of the untimely allegations, see Issue 1, above.)
With regard to the alleged failure provide regular or special education and related aids and
services to the Student during the XXXX XXXX semester, OCR found that the Student did not
attend school at the District during the XXXX XXXX semester, and therefore, the District had
no obligation to provide the Student a FAPE during this period.
With regard to the remaining allegations of failure to provide regular or special education and
related aids and services to the Student, OCR reviewed the Student’s Section 504
Accommodation Plan (504 Plan) dated XXXX XXXX, XXXX, which was in place during
XXXX and XXXX XXXX, and OCR reviewed the Student’s 504 Plans dated XXXX XXXX ,
XXXX and XXXX XXXX, XXXX, which were in place during the XXXX school year. OCR’s
review revealed that a group of persons, including the Student’s parents, knowledgeable about
Page 11 – Resolution Letter to Recipient OCR Ref. 06-16-1053
the Student and the meaning of his evaluation data and placement options identified the Student
as a student with a disability and made placement decisions for him as documented in his 504
Plans. Additionally, the 504 Plans contained the Student’s parents’ signatures indicating that
they participated in the Section 504 committee meetings that resulted in the 504 Plans. OCR
verified that the Student’s 504 Plans required each of the aids and services that the complainant
alleged to not have been provided to the Student.
In the District’s response to OCR’s request for data, the District stated that the Student was
provided the services in his 504 Plans. The District provided emails between campus staff and
the Student’s parents reflecting the staff members’ collaboration with the parents on scheduling
make up tests, allowing assignments to be submitted after the due date, sharing calendars and
rubrics, and answering questions about assignments and grading. Additionally, OCR
interviewed XXXX of the Student’s teachers and twelve administrative and professional staff
from the XXXX XXXX semester and from the XXXX school year. During the interviews, OCR
questioned the teachers and staff about each of the complainant’s specific allegations regarding
the failure to provide the Student’s accommodations. The teachers and staff informed OCR that
they regularly and consistently provided the accommodations required by the 504 Plan and often
provided the Student more accommodations than were required by the 504 Plan.
Of the Student’s twenty-eight accommodations that were reviewed by OCR, the evidence
indicated that one accommodation was not always provided according to the 504 Plan – the
Student’s parents were to be provided an emailed copy of all calendars and rubrics for each of
the Student’s classes. The evidence indicated that, during the XXXX XXXX semester, the
Student’s XXXX teacher missed emailing two calendars to the Student’s parents at the end of the
school year. However, the calendars were available to the Student and his parents on
GoogleClassroom and/or on the mypisd webpage, and the XXXX teacher informed OCR that if
the Student ever missed an assignment or turned it in late, he never applied late grades to the
Student. OCR reviewed the Student’s XXXX grades and found the Student earned a B grade
during both fall and spring semester, and his spring semester grade (during the period when the
two calendars were not emailed to the parents) was slightly higher than his fall semester grade.
Also, the evidence indicated that, during the first six weeks of the XXXX XXXX semester, the
Student’s XXXX XXXX teacher did not email rubrics to the Student’s parents. However, the
XXXX XXXX teacher recalled showing the rubrics in class and making them available at any
time on the GoogleClassroom and/or mypisd website. OCR reviewed the Student’s XXXX
XXXX grades and found the Student earned an A grade during this period (the first six weeks of
the XXXX XXXX semester). Further, the evidence indicated that, during the XXXX school
year, the Student’s XXXX teacher emailed only “a few” calendars to the Student’s parents, while
a majority of the time the parents obtained the calendar from GoogleClassroom. The XXXX
teacher stated that during the middle of the school year, the Student’s parents brought up the
topic of the calendar being emailed to them, and the teacher responded by emailing the calendar
to them and when the next calendar was ready, the XXXX teacher emailed it to the Student’s
parents, as well. The XXXX teacher informed OCR that the Student understood what was
expected of him as was evident in his good grades in her class. OCR reviewed the Student’s
XXXX grades and found the Student earned an A grade during both fall and spring semester, and
his fall semester grade (the period before the teacher began emailing the calendars) was slightly
higher than his spring semester grade. OCR determined that the de minimis failure to email the
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calendars and rubrics to the Student’s parents had no negative impact on the Student’s
educational opportunity.
As such, OCR concluded there is insufficient evidence that the District denied the Student a
FAPE by failing to provide regular or special education and related aids and services deemed
necessary to meet the Student’s individual educational needs during XXXX XXXX , XXXX
through XXXX XXXX and the XXXX school year.
Issue 5
Whether the District treated the Student differently on the basis of disability in the context of an
educational program or activity without a legitimate, nondiscriminatory reason, and thereby,
interfered with or limited the ability of the Student to participate in or benefit from the services,
activities or privileges provided by the District during XXXX XXXX, XXXX XXXX and
XXXX XXXX, in violation of Section 504, at 34 C.F.R. § 104.4, and Title II, at 28 C.F.R. §
35.130.
Legal Standard
Section 504’s implementing regulation at 34.C.F.R. §104.4 prohibits recipients from excluding
an individual from participation in, denying an individual the benefits of, or otherwise subjecting
an individual to discrimination with respect to the services, activities, or privileges provided by
the recipient because of the individual’s disability. Further, the Section 504 implementing
regulation, at 34 C.F.R. § 104.37 states that a recipient that offers nonacademic and
extracurricular activities must do so in such a manner as is necessary to afford qualified students
with disabilities an equal opportunity for participation. The Title II regulation, at 28 C.F.R. §
35.130(b)(7), requires a public entity to make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity. In considering whether a
reasonable modification is legally required, the school district must first engage in an
individualized inquiry to determine whether the modification is necessary. If the modification is
necessary, the school district must allow it unless doing so would result in a fundamental
alteration of the nature of the activity. Even if a specific modification would constitute a
fundamental alteration, a school district is still required to determine if other modifications might
be available that would permit the student’ s participation.
Findings of Fact and Analysis
With regard to the allegations of different treatment in XXXX XXXX and XXXX XXXX, OCR
concluded that these untimely allegations, which initially were granted a waiver, are not
appropriate for investigation. OCR has dismissed these allegations and will take no further
action with regard to them. (For more information about OCR’s dismissal of the untimely
allegations, see Issue 1, above.)
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With regard to the allegation of different treatment in XXXX XXXX, the complainant alleged
that the Student’s XXXX teacher told her that the Student would not be able to attend the XXXX
XXXX during XXXX XXXX because the Student’s potential need for use of the Epi Pen could
not be accommodated. The XXXX teacher informed OCR that she did not tell the Student’s
parent that the Student could not attend the XXXX XXXX as “any student who registers for and
pays the participation fee for the XXXX XXXX is allowed to participate in it.” Information
provided by both the complainant and the District shows that the Student attended the XXXX
XXXX XXXX XXXX. However, prior to determining whether the District met its obligations
under Section 504 and Title II with regard to the provision of reasonable modifications, the
District expressed interest in voluntarily resolving this allegation. Consistent with Section 302 of
OCR’s Complaint Processing Manual, the District submitted the attached Resolution Agreement
(Agreement), signed on XXXX XXXX XXXX. OCR has determined that, when fully
implemented, the Agreement will address the allegation. OCR will monitor the implementation
of the Agreement.
Issue 6
Whether the District retaliated against the Student and his parents by refusing to respond to the
Student’s mother’s emails and requests for information and resources, excluding her from
communication and input related to Section 504, refusing to provide the Student’s mother
calendars and rubrics during the XXXX school year and excessively pulling the Student out of
class and “over-scrutinizing” him during XXXX XXXX, because the Student’s parents filed
grievances and advocated for the Student, in violation of Section 504 at 34 C.F.R. § 104.61 and
Title II at 28 C.F.R. § 35.134.
Legal Standard
In order for an allegation of retaliation to be sustained, OCR must determine whether:
1) A prima facie case of retaliation can be established, which involves consideration of
whether
a. an individual experienced an adverse action caused by the recipient; and
b. the recipient knew that the individual engaged in a protected activity or believed
the individual might engage in a protected activity in the future; and
c. there is some evidence of a causal connection between the adverse action and the
protected activity
2) The recipient identifies a facially legitimate reason for taking the adverse action other
than the protected activity; and
3) Whether the recipient’s reason is a pretext for retaliation and/or whether multiple motives
exist for the recipient taking the adverse action.
If OCR does not find that a prima facie case exists, OCR will conclude that there is insufficient
evidence to support a finding of retaliation. If, however, the evidence demonstrates a prima facie
case of retaliation, an inference of unlawful retaliation is raised and OCR proceeds to the next
stage of the analysis. To ascertain whether this inference might be rebutted, OCR will then
determine whether the recipient can identify a non-retaliatory reason for its actions. If such a
reason is identified, OCR’s investigation proceeds to the third stage. At the third stage, OCR
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examines the evidence to resolve what the real reason was (or reasons were) for the intimidation,
threat, coercion, or discrimination.
Findings of Fact and Analysis
With regard to the allegations of retaliation against the Student’s mother during XXXX XXXX
through XXXX XXXX , XXXX and against the Student in XXXX XXXX, OCR concluded that
these untimely allegations, which initially were granted a waiver, are not appropriate for
investigation. OCR has dismissed these allegations and will take no further action with regard to
them. (For more information about OCR’s dismissal of the untimely allegations, see Issue 1,
above.)
With regard to the allegation of retaliation against the Student’s mother during XXXX XXXX ,
XXXX through XXXX XXXX, the complainant alleged that the Student’s teachers of XXXX,
XXXX, XXXX, and XXXX sent calendars and responses to the Student’s parents’ inquiries only
to the complainant’s husband’s email account but did not copy the complainant on those email
communications. The complainant alleged that this was problematic because XX—redacted to
end of sentence— XX. OCR reviewed written correspondence between the Student’s parents
and District staff, and OCR determined that the Student’s parents sent a large volume of
correspondence to the staff. OCR found that staff responded to numerous emails from the
Student’s mother and included the Student’s mother in numerous emails. OCR also found that a
XXXX XXXX principal attempted to take on the role as the “contact person” for the Student’s
parents but the Student’s parents continued to communicate with other District staff, in some
instances.
OCR specifically reviewed emails during XXXX and XXXX XXXX between the Student’s
parents and the Student’s XXXX, XXXX, XXXX, and XXXX teachers. OCR found that, in
most emails, the teachers addressed both the complainant’s email account and her husband’s
email account, and in the remaining emails, the teachers addressed only the complainant’s
husband’s email account in response to emails that came from only the complainant’s husband’s
email account. OCR found no evidence of the teachers excluding or failing to respond to the
complainant. Therefore, because OCR could not find evidence that the Student’s teachers
excluded or failed to respond to the complainant, OCR could not establish a prima facie case for
the alleged retaliation. Accordingly, OCR concluded that there is insufficient evidence to
support a finding of retaliation.
Conclusion
Based on the above information, OCR determined that there is insufficient evidence to support a
conclusion that the District discriminated against the Student on the basis of disability in
violation of Section 504 and Title II for Issues 1-4 and 6. Prior to completing the investigation
of Issue 5, the District entered into an Agreement to resolve the underlying allegation (Allegation
8). Based on the commitments the District has made in the Agreement described above, OCR
has determined that it is appropriate to close the investigative phase of the allegation. The
District has agreed to provide data and other information demonstrating implementation of the
Agreement in accordance with the reporting requirements of the Agreement. OCR may conduct
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visits and request additional information as necessary to determine whether the District has
fulfilled the terms of the Agreement. Upon completion of the obligations under this Agreement,
OCR shall close this complaint.
This letter should not be interpreted to address the District’s compliance with any other
regulatory provision or to address any issues other than those addressed in this letter. This letter
sets forth OCR’s determination in an individual OCR case. This letter is not a formal statement
of OCR policy and should not be relied upon, cited, or construed as such. OCR’s formal policy
statements are approved by a duly authorized OCR official and made available to the
public. The complainant may have a right to file a private suit in federal court whether or not
OCR finds a violation.
The complainant has a right to appeal OCR’s determination within 60 calendar days of the date
indicated on this letter. In the appeal, the complainant must explain why the factual information
was incomplete, inaccurate, the legal analysis was incorrect or the appropriate legal standard was
not applied, and how correction of any error(s) would change the outcome of the case; failure to
do so may result in dismissal of the appeal. If the complainant appeals OCR’s determination,
OCR will forward a copy of the appeal form or written statement to the recipient. The recipient
has the option to submit to OCR a response to the appeal. The recipient must submit any
response within 14 calendar days of the date that OCR forwarded a copy of the appeal to the
recipient.
Please be advised that District may not harass, coerce, intimidate, or discriminate against any
individual because he or she participated in this complaint. If this should occur, the individual
may file a complaint alleging such harassment or intimidation.
Under the Freedom of Information Act, it may be necessary to release this document and related
correspondence and records upon request. In the event that OCR receives such a request, it will
seek to protect, to the extent provided by law, personally identifiable information, which, if
released, could reasonably be expected to constitute an unwarranted invasion of personal
privacy.
If you have any questions or concerns regarding this matter, you may contact the attorney
investigator assigned to this case, Tiffany Gray, by telephone at (214) 661-9611 or by e-mail at
[email protected], or you may contact me at (214) 661-9678 or by email at
Sincerely,
Adriane P. Martin
Supervisory Attorney/Team Leader
Office for Civil Rights
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Dallas Office