OCR finds that ESY needs to be determined individually

A district (Tuttle, OK) ran in to a little difficulty with OCR by suggesting a standard amount of ESY hours for everyone instead of making a individualized decision.

Office for Civil Rights, Midwestern Division, Kansas City (OK)

07-09-1160

November 17, 2009

Judge / Administrative Officer

Angela M. Bennett, Director

Full Text



Dear Superintendent Coker:
On May 21, 2009, the U.S. Department of Education
(Department), Office for Civil Rights (OCR), received a complaint
alleging discrimination on the basis of disability by the Tuttle Public
Schools (District), Tuttle, Oklahoma. OCR has completed its
investigation of the complaint. This letter details OCR's investigation
and findings.
The complainant alleged that the District: (1) denied
her daughter, a student with disabilities, a free appropriate public
education by limiting her Extended School Year (ESY) services to two
days (two and one-half hours per day) per week based on the enrollment
of other students rather than an individualized decision regarding her
daughter's needs; and (2) treated her daughter differently than
nondisabled students by not allowing her to participate and play on the
softball team at the Tuttle Middle School because of her disabilities.
OCR is responsible for enforcing:
- Section 504 of the Rehabilitation Act of 1973
(Section 504), 29 United States Code (U.S.C.) § 794, and its
implementing regulation, 34 Code of Federal Regulations (C.F.R.) Part
104. Section 504 prohibits discrimination on the basis of disability by
recipients of Federal financial assistance (FFA).
-Title II of the Americans with Disabilities Act of
1990 (Title II), 42 U.S.C. § 12131, and its implementing regulation, 28
C.F.R. Part 35. Title II prohibits discrimination on the basis of
disability by public entities.
As a recipient of FFA from the Department and a
public entity, the District is subject to Section 504 and Title II.
In investigating this complaint, OCR examined
information the complainant and the District submitted, including the
complainant's daughter's education records, District policies regarding
the evaluation and placement of students with disabilities, and
information regarding student participation on District athletic teams.
OCR also interviewed the complainant by telephone and interviewed the
complainant, her daughter, and her husband in person on August 5, 2009.
During an on-site visit to the District on August 6 and 7, 2009, OCR
interviewed the District's director of federal programs, the athletic
director for the District, an occupational therapist and a speech
pathologist who worked with the complainant's daughter, and the
following Tuttle Middle School staff, the principal, the counselor, two
special education teachers who worked with the complainant's daughter, a
regular education teacher who taught the complainant's daughter, and a
paraprofessional who worked with the complainant's daughter. OCR staff
also met with you during the on-site visit.
OCR applies a preponderance-of-the-evidence standard
to determine whether evidence is sufficient to support a particular
conclusion. Specifically, OCR examines the evidence in support of and
against a particular conclusion to determine whether the greater weight
of the evidence supports the conclusion or whether the evidence is
insufficient to support the conclusion.
Based on our investigation, OCR has concluded that
the allegation that the District discriminated against the complainant's
daughter on the basis of disability with regard to her participation on
the Tuttle Middle School softball team, as alleged in Allegation 2 of
this complaint, has been resolved. With regard to Allegation 1 of the
complaint, OCR found the District denied the complainant's daughter a
free appropriate public education as alleged. OCR's determination is
explained in detail below.



Allegation 1 -- Denial of Free
Appropriate Public Education

The complainant alleged the District denied her
daughter a free appropriate public education by limiting her ESY
services during summer 2009 to two days per week, for two and one-half
hours per day, based on the enrollment of other students rather than an
individualized decision regarding her daughter's needs.



Legal Standard

The regulation implementing Section 504 at 34 C.F.R. §
104.4 states that no qualified person with a disability shall, on the
basis of disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity that receives FFA. A District student is considered a
qualified individual with a disability under Section 504 if the
student: (1) has a physical or mental impairment that substantially
limits one or more of the student's major life activities; (2) has a
record of such an impairment; or (3) is regarded as having such an
impairment. See 34 C.F.R. § 104.30(1). As defined in the Section 504
regulation at 34 C.F.R. § 104(j)(2)(ii), major life activities include,
but are not limited to, functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
The regulation implementing Section 504 at §
104.33(a) requires recipients of FFA that operate a public elementary or
secondary education program, such as the District, to provide a free
appropriate public education to each qualified individual with a
disability who is in the recipient's jurisdiction, regardless of the
nature or severity of the person's disability. The regulation
implementing Section 504 at 34 C.F.R. § 104.33(b)(1) defines an
appropriate education as regular or special education and related aides
and services that: (i) are designed to meet individual educational needs
of individuals with a disability as adequately as the needs of
nondisabled persons are met; and (ii) are based upon adherence to
procedures that satisfy the requirements of 34 C.F.R. §§ 104.34
(educational setting), 104.35 (evaluation and placement), and 104.36
(procedural safeguards). As stated in the Section 504 regulation at 34
C.F.R. § 104.33(b)(2), a school district may satisfy its obligation to
provide an appropriate education to a student with a disability by
implementing an individualized education program (IEP) developed for the
student in accordance with the Individuals with Disabilities Education
Act (IDEA).
Under 34 C.F.R. § 104.35(b), recipients are required
to establish standards and procedures for the evaluation and placement
of students who, because of disability, need or are believed to need
special education or related services. In making placement decisions,
recipients are required to draw upon information from a variety of
sources, ensure that information obtained from all such sources is
documented and carefully considered, and ensure that the placement
decision is made by a group of persons knowledgeable about the student,
the meaning of evaluation data, and placement options. Through this
process, recipients must determine whether the student is a qualified
individual with a disability and, if so, determine the student's
appropriate regular or special education placement and related service
needs, including the student's need for extended school year services.
The regulation implementing Title II at 28 C.F.R. §
35.130(a) states that a qualified individual with a disability may not
be excluded from participation in, or be denied the benefits of, the
services, programs, or activities of a public entity. The Title II
regulation at 28 C.F.R. § 35.130(b)(1)(i) similarly states that a public
entity, in providing any aid, benefit, or service, may not deny a
qualified individual with a disability the opportunity to participate in
or benefit from the aide, benefit, or service on the basis of the
individual's disability. OCR interprets the Title II regulation to
require school districts to provide a free appropriate public education
to qualified individuals with a disability to the same extent required
by the Section 504 regulation.



Findings of Fact

OCR investigated whether the District denied the
complainant's daughter a free appropriate public education by limiting
her ESY services for the summer of 2009 without making an individualized
decision regarding her needs. Specifically, the complainant alleged
that during a May 2009 IEP team meeting regarding her daughter, the
District's director of federal programs informed her that the number of
hours of ESY services for her daughter for the summer of 2009 would be
less than previous summers based on the low number of students who would
be receiving ESY services during summer 2009, and did not allow her
daughter's IEP team to make an individualized determination regarding
the appropriate number of hours her daughter should receive ESY
services. Based on the information the complainant and her family
provided and on information provided by District employees and
contractors, OCR made the following factual findings:



Background Information

- The complainant's daughter is a 13-year-old student
who has been diagnosed with attention-deficit hyperactivity disorder
(ADHD) and epilepsy. A 2007 evaluation by the District identified the
complainant's daughter as having a Specific Learning Disability in the
areas of basic reading skills, reading comprehension, written
expression, math calculation, and math reasoning and found that her
intellectual functioning was in the Extremely Low classification range.
- The complainant's daughter has attended school in
the District since first grade, and is currently a seventh grade student
at the Tuttle Middle School.
- The complainant's daughter has had an IEP since she
was four-years-old. The District acknowledges that the complainant's
daughter is a student with a disability and has classified her as Other
Health Impaired based on her ADHD and history of seizures.
- The complainant's daughter has received ESY
services in the District for as long as she has attended school in the
District The complainant stated that her daughter received ESY services
four days per week, for two and one-half hours per day, every summer
until summer 2009, when she only received ESY services two days per
week. The District provided OCR documentation confirming that during
summer 2006, summer 2007, and summer 2008, the complainant's daughter
received ESY services four days a week for six weeks. The documentation
did not specify the number of hours of ESY services she received per
day, but District personnel did not dispute that she received
approximately two and one-half hours of ESY services on the days she
attended the ESY program. The documentation the District provided OCR
for summers prior to 2005 did not specify the number of days or hours of
ESY services the complainant's daughter received per week.



District Policies Regarding
Discrimination on the Basis of Disability and ESY Services

- The District's notice of nondiscrimination states
that the District does not discriminate on the basis of race, color,
sex, age, national origin, alienage, disability, or veteran status.
- The District does not have any grievance procedures
in place for the resolution of complaints alleging disability
discrimination.
- The District has a policy and guidelines in place
regarding ESY services for children and youth with disabilities. The
District's Extended School Year Policy for Students with Disabilities
(ESY Policy) defines ESY as "special education programming in excess of
180 days per year as recommended by a multidisciplinary team." The ESY
Policy states that the purpose of the District's ESY program is "to
prevent regression and to maintain skills which would otherwise be lost
due to severe regression and inability to recoup."
- The District's ESY Policy states that the factors
the District will consider in determining whether a student needs ESY
services include: (1) the degree of regression and the time necessary
for a student to recoup lost skills; (2) the ability of the student's
parents to provide educational structure at home; (3) the nature and
degree of the student's disability; (4) the student's rate of progress;
(5) the student's behavioral and physical problems; (6) the availability
of alternative resources; (7) the ability of the student to interact
with non-disabled children; (8) the areas of the student's curriculum
that need continuous attention; (9) the child's vocational needs; (10)
is the area of service(s) under consideration "extraordinary" to the
student's disabling condition; and (11) is the area of service(s) under
consideration an integral part of a special education program designed
for children with the same disability.
- The District's ESY Policy identifies several
potential sources of information for the District to use in determining a
student's eligibility for ESY services, including criterion referenced
and standardized tests, functional assessments, an analysis of data
collected on a regular basis, interviews with teachers and parents
regarding the success or potential success of ESY services, and an
analysis of student performance on IEP objectives across time.
- The District's ESY Policy specifies that the
District will provide ESY services for six weeks during the summer and
that eligibility for ESY services "will be considered on an individual
basis each year, for each student." In accordance with its ESY Policy, a
multidisciplinary team, generally a student's IEP team, develops an ESY
IEP that sets out the ESY services a student will receive during a
given summer.
- The director of federal programs oversees the
District's ESY program.



May 20, 2009 IEP Meeting

- The District held an IEP meeting on May 20, 2009
regarding the complainant's daughter. The complainant and the director
of federal programs attended the IEP meeting along with an occupational
therapist contracted by the District, a District speech pathologist, and
the following Tuttle Middle School employees: the counselor, a
paraprofessional who assisted the complainant's daughter, the
complainant's daughter's special education teacher, and a regular
education teacher who taught the complainant's daughter. The Tuttle
Middle School principal participated in part of the IEP meeting, but was
not present for the entire meeting.
- The complainant told OCR that she and the director
of federal programs discussed her daughter's ESY services for summer
2009 during the IEP meeting and that the director of federal programs
stated that her daughter would receive two days of ESY services per
week. The complainant asked why, since in the past, her daughter had
received ESY services four days per week. The complainant told OCR that
the director responded, "Honestly, we just didn't have enough kids sign
up." The complainant told OCR that was the extent of the IEP team's
discussion regarding ESY services for her daughter.
- The District provided OCR a completed Consideration
for Extended School Year (ESY) Services form for the complainant's
daughter dated May 20, 2009. The form lists 13 factors IEP teams may
consider in determining whether a student needs ESY services to receive a
free appropriate public education. The form has yes and no boxes next
to each factor and instructs the individual completing the form to
indicate, by checking the applicable box, which factors the IEP team
considered to be relevant to the student. The completed form for the
complainant's daughter indicated that the IEP team considered the
following factors: (1) her degree of impairment; (2) her regression and
the time necessary for recoupment of skills; (3) the ability of her
parents to provide educational structure at home; (4) her rate of
progress; (5) the ability of the complainant's daughter to interact with
nondisabled children; (6) areas of the complainant's daughter's
curriculum requiring continuous attention; and (7) the Least Restrictive
Environment for the complainant's daughter. Under the area of
regression and recoupment, the form states: "[The complainant's
daughter] loses what she learns very quickly. We work on skills daily
and review often on task already covered." The form shows that the IEP
team determined ESY services were necessary for the complainant's
daughter to receive a free appropriate public education. The spaces on
the form for IEP team members to sign showing they participated in the
review of existing data for the ESY determination were left blank.
- The IEP team completed an ESY IEP for the
complainant's daughter at the May 20, 2009 IEP meeting. The ESY IEP
showed the skill areas the District was supposed to address with her
during summer 2009 were reading, math, and speech/language. Under
"Amount of Service(s) Necessary," the ESY IEP said: "4 days a week X 6
weeks" -- with the "4" crossed out and replaced by a handwritten "2" --
for reading and math, and "30 min X 2 weekly" for speech/language. The
IEP also showed 8:30 a.m. to 11:00 a.m. as the time period for the
provision of services. The ESY IEP showed May 2009 as the beginning date
for ESY services and June 2009 as the ending date for ESY services. The
ESY IEP also contained the following comment: "Due to severe
regression, all subject areas need to be addressed." All of the IEP team
members except for the complainant and the principal signed and dated
the ESY IEP.
- The written position statement the District
submitted to OCR stated that while in previous years, the complainant's
daughter's IEP team recommended the complainant's daughter receive four
days per week of ESY services for a total of six weeks, due to her
"level of functioning and slow rate of progress," the IEP team
recommended that for summer 2009, she should only receive ESY services
two days per week for six weeks.
- The director of federal programs told OCR the
discussion during the May 20 IEP meeting regarding ESY services for the
complainant's daughter was brief. He said the IEP team recommended that
she receive two days per week of ESY services during summer 2009 rather
than four days per week as she had in the past. He recalled the
complainant responding to the recommendation by saying something to the
effect of, "Well, is that it?" The director told OCR he did not recall
saying in the IEP meeting that the number of days of ESY services for
the complainant's daughter was being reduced because not enough students
had signed up for ESY services. The director denied that he, or the
District, reduced the number of days of ESY services for the
complainant's daughter based on the enrollment of other students and
denied that there were any restrictions on the number of students to
whom the District could provide ESY services, or on the amount of money
the District could spend on ESY services, for summer 2009.
- One IEP team member also told OCR the discussion
during the May 20, 2009 IEP meeting regarding ESY services was brief.
She recalled a member of the IEP team stating in the IEP meeting that
the number of days per week of ESY services for the complainant's
daughter for the summer of 2009 had been reduced to two days per week.
The complainant asked why it had changed, and the director of federal
programs responded that the entire ESY program had been reduced from
five days per week to two days per week due to a policy change or a
District change. The IEP team member told OCR there was no discussion
during the IEP meeting regarding how many days of ESY services per week
the complainant's daughter needed because the director of federal
programs basically said, "This is the way we are running the ESY program
this year."
- A second IEP team member told OCR the decision to
reduce the number of days per week of ESY services for the complainant's
daughter to two days for summer 2009 was an administrative decision
that applied to all students receiving ESY services for summer 2009, not
just the complainant's daughter. This team member said she had no input
in the decision and that the reduction was applicable to all students
whose parents wanted their children to receive ESY services. She
indicated to OCR that she thought the ESY program had been operated that
way for as long as she had worked in the District.
- A third IEP team member told OCR she recalled the
director of federal programs telling the complainant during the May 20
IEP meeting that the District was not going to have as many ESY
services. When the complainant asked what he meant, the director of
federal programs said something to the effect of, "We don't have
enough." The team member did not know what the director was referring to
when he said, "We don't have enough."
- Two other IEP team members told OCR they recalled
the complainant asking, during the May 20 IEP meeting, why the number of
days of ESY services for her daughter was being reduced to two days per
week. One of these IEP team members could not recall the director of
federal program's response to the complainant's question, and the other
member thought the director responded that some students received two,
three, or four days of ESY services based on need.
- One IEP team member told OCR she recalled ESY
services coming up during the May 20 IEP meeting but did not remember
the team discussing how many days per week the complainant's daughter
would receive ESY services during summer 2009.



Additional Information

- The director of federal programs told OCR he
oversees the District's ESY program "to an extent," but that the ESY
services provided during the summer extend beyond his contract period.
He indicated that he relies on the staff members hired to provide ESY
services for a given summer to ensure that the services are provided.
During summer 2009, the District had three teachers as well as an
occupational therapist, physical therapist, and speech pathologist
providing ESY services to students.
- The director of federal programs told OCR that
during summer 2009, the District provided ESY services to students
younger than fourth grade at one location and provided ESY services to
students in fourth, fifth, and sixth grade at a second location. The
District did not have any students in seventh grade or higher receive
ESY services during summer 2009. The director told OCR approximately 25
District students younger than fourth grade received ESY services during
summer 2009, and approximately three students in the fourth, fifth, and
sixth grades combined, including the complainant's daughter, received
ESY services during summer 2009. No student received more than two days
per week of ESY services during summer 2009.
- The speech therapist realized during her on-site
interview with OCR that she was supposed to have provided the
complainant's daughter 30 minutes of individualized ESY speech/language
services two times per week during summer 2009 but did not provide her
any of those services. The speech therapist told OCR she received a
schedule from the director of federal program's secretary with the names
of students she was supposed to serve during summer 2009 and did not
recall seeing the complainant's daughter's name on the list. The speech
therapist acknowledged that she had signed the ESY IEP for the
complainant's daughter on May 20, 2009 and should have known she was
supposed to provide her speech/language services during summer 2009.
- The director of federal programs explained to OCR
that the schedule his secretary provided the speech therapist for summer
2009 listed the children younger than grade four who were supposed to
receive ESY speech/language services during summer 2009 by name because
there were so many of them, and did not identify the older students who
were supposed to receive ESY speech/language services by name because
there were only a few of them.



Analysis and Conclusion

In analyzing the complainant's allegation that the
District denied her daughter a free appropriate education by limiting
her ESY services for summer 2009 to two days per week based on the
enrollment of other students rather than an individualized decision
regarding her daughter's needs, OCR looked first at whether the
complainant's daughter was a qualified individual with a disability
entitled to receive ESY services. In order for the complainant's
daughter to be protected under Section 504 and Title II as an individual
with a disability, she must have a physical or mental impairment that
substantially limits one or more of her major life activities, have a
record of such an impairment, or be regarded as having such an
impairment. See 34 C.F.R. § 104.30(1) and 28 C.F.R. § 35.104. OCR
concluded that the District identified the complainant's daughter as a
qualified individual with a disability prior to summer 2009, and that a
multidisciplinary team knowledgeable about her, the meaning of
evaluation data, and placement options, determined she needed ESY
services during summer 2009 in order to receive a free appropriate
public education.
Next, OCR examined whether the District made an
individualized determination regarding the amount of ESY services the
complainant's daughter needed during summer 2009 in order to receive a
free appropriate public education, or limited the amount of ESY services
for her daughter based on a uniform reduction in ESY services for all
students who qualified for ESY services. Based on our investigation, OCR
concluded that the preponderance of the evidence established that the
District reduced the complainant's daughter's ESY services to two days
per week based on a uniform, District-wide decision regarding the amount
of ESY services it would provide during summer 2009, not based on an
individualized determination regarding her educational needs. Although
OCR could not confirm that the District reduced ESY services to two days
per week for summer 2009 based on low student enrollment, the
preponderance of the evidence showed the director of federal programs,
who runs the District's ESY program, stated in the complainant's
daughter's May 20, 2009 IEP meeting that the complainant's daughter
would only receive two days per week of ESY services due to a policy
change or change in the way the District ran the ESY program. Several
IEP team members confirmed that the director of federal programs made
this or a similar statement, and the fact that no student in the
District received more than two days of ESY services during summer 2009
supports OCR's finding that the District limited its provision of ESY
services during summer 2009 for all students, including the
complainant's daughter.
OCR has concluded that the District violated Section
504 and Title II by failing to make an individualized determination
regarding the amount of ESY services the complainant's daughter needed
during summer 2009 to receive a free appropriate public education. OCR
has also concluded that the District failed to provide her the
speech/language services required by her ESY IEP for summer 2009. Under
the complainant's daughter's ESY IEP, the speech pathologist was
supposed to provide her individualized speech/language services for 30
minutes, two times a week for six weeks during May and June 2009. The
speech pathologist acknowledged to OCR that she did not provide the
complainant's daughter these ESY speech/language services due to an
oversight. This failure to provide 360 minutes of ESY speech/language
services that the complainant's daughter's IEP team determined were
necessary for her to receive a free appropriate public education also
raises Section 504 and Title II compliance concerns.
Although the complainant did not allege in her OCR
complaint that the District's grievance procedures for complaints of
disability discrimination were inadequate, the evidence obtained during
OCR's investigation of her complaint also raised compliance concerns
about the District's Section 504/Title II grievance procedures.
Specifically, OCR is concerned that the District does not have grievance
procedures in place for complaints of disability discrimination that do
not have to do with the identification, evaluation, or placement of
student with a disability under the IDEA. The Section 504 regulation at
34 C.F.R. § 104.7(b) requires recipients that employ 15 or more
individuals, such as the District, to adopt grievance procedures that
incorporate appropriate due process standards and provide for the prompt
and equitable resolution of complaints alleging any action prohibited
by Section 504. The Title II implementing regulation at 28 C.F.R. §
35.107(b) contains a similar requirement for public entities such as the
District that employ 50 or more individuals.
The District has voluntarily entered into a
Resolution Agreement (Agreement) with OCR to resolve Allegation 1 of
this complaint and address the Section 504 and Title II compliance
concerns OCR identified regarding the District's failure to provide the
complainant's daughter ESY speech/language services during summer 2009
and lack of adequate grievance procedures for the prompt and equitable
resolution of disability discrimination complaints. The District
executed the Agreement, a copy of which is enclosed, on November 3,
2009. When fully implemented, the Resolution Agreement will resolve the
Section 504/Title II violations identified by OCR. Therefore, OCR
considers Allegation 1 of this complaint resolved as of the date of this
letter. OCR will monitor the District's compliance with the Agreement.



Allegation 2 -- Different Treatment Based
on Disability

The complainant alleged that the District treated her
daughter differently than nondisabled students by not allowing her to
participate and play on the softball team at the Tuttle Middle School
because of her disabilities. More specifically, the complainant alleged
that during a May 20, 2009 IEP meeting regarding her daughter, IEP team
members told her, or implied, that her daughter would not be allowed to
practice or play on the softball team during the 2009-10 school year
because of her disabilities. At the time the complainant filed her
complaint with OCR, the 2009-10 school year had not yet begun.



Legal Standard

Under the Section 504 regulations at 34 C.F.R. §§
104.4(a) and 104.4(b)(1), no qualified person with a disability shall,
on the basis of disability, be excluded from participation in, be denied
the benefits of, or otherwise be subjected to discrimination under any
program or activity that receives FFA. More specifically, a recipient of
FFA may not, on the basis of disability, deny a qualified person with a
disability the opportunity to participate in or benefit from the aids,
benefits, or services it provides and may not provide different or
separate aids, benefits, or services to individuals with a disabilities
unless such action is necessary to provide qualified disabled persons
with aids, benefits, or services that are as effective as those provided
to others. In addition, a recipient may not limit a qualified
individual with a disability in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others receiving an aid, benefit,
or service from the recipient.
The Title II regulation at 28 C.F.R. § 35.130(a)
similarly prohibits public entities from subjecting qualified
individuals with disabilities to discrimination and from excluding, on
the basis of disability, qualified individuals from participating in and
receiving the benefits of the public entities' services, programs, and
activities. OCR has construed Title II's general discrimination
provisions to cover discriminatory conduct that is specifically
prohibited under Section 504.
In order for a District student to be protected under
Section 504 and Title II as an individual with a disability, the
student must have a physical or mental impairment that substantially
limits one or more of his or her major life activities, have a record of
such an impairment, or be regarded as having such an impairment. See 34
C.F.R. § 104.30(1) and 28 C.F.R. § 35.104.
To determine whether a recipient or public entity
discriminated against a student on the basis of disability by treating
the student differently than non-disabled students, OCR applies a
different treatment analysis. First, OCR examines whether a prima facie
case of discrimination exists. To establish a prima facie case of
discrimination in this case, OCR must find that the District identified
or regarded the complainant's daughter as an individual with a
disability, a District official or representative treated her
differently than one or more similarly situated non-disabled students in
a way that interfered with or limited her ability to participate in or
benefit from the District's educational program, and the different
treatment occurred in the course of the District official's or
representative's authorized or assigned duties and responsibilities. If
OCR finds a prima facie case of discrimination exists, it must then
determine whether the District has articulated a legitimate,
nondiscriminatory reason for treating the complainant's daughter
differently. If the District has articulated a legitimate,
nondiscriminatory reason for treating her differently than a similarly
situated student without a disability, OCR cannot find the District
discriminated against her on the basis of disability unless OCR
determines that the reason the District provided for the different
treatment is merely a pretext, or a cover-up, for unlawful
discrimination.
The Section 504 regulation at 34 C.F.R. § 104.37
requires recipients of FFA from the Department to provide nonacademic
and extracurricular services and activities in such a manner as is
necessary to afford students with disabilities an equal opportunity to
participate in the services and activities as students without
disabilities. With regard to physical education courses and athletics,
the regulation specifically requires, at 34 C.F.R. § 104.37(c)(1),
recipients that offer physical education courses or operate or sponsor
interscholastic, club, or intramural athletics to provide qualified
students with disabilities an equal opportunity for participation. The
Title II regulation at 28 C.F.R. § 35.130(b)(1)(ii) similarly provides
that public entities must afford qualified individuals with disabilities
an equal opportunity to participate in or benefit from its aids,
benefits, and services as that afforded to individuals without
disabilities. Accordingly, to determine whether the District
discriminated against the complainant's daughter on the basis of
disability, OCR considered whether the District offered her an equal
opportunity to participate on the Tuttle Middle School softball team as
students without disabilities.



OCR Findings

OCR investigated whether the District discriminated
against the complainant's daughter on the basis of disability by
prohibiting her from participating on the Tuttle Middle School softball
team as the complainant alleged.
Based on the information the complainant and her
family provided, as well as information provided by District employees
and contractors, OCR made the following factual findings:



Background Information -- Regarding
Student Participation on the Tuttle Middle School Softball Team

- The Tuttle Middle School serves students in grades
six through eight. The District has mandatory physical education (P.E.)
for sixth graders, but does not offer a general P.E. class for seventh
or eighth grade students.
- Seventh and eighth grade students who want to
participate in athletics at the Tuttle Middle School may sign up for one
or more of the school's athletic teams. The athletic teams practice
during the school day, during the Athletics class. Students who are in
the Athletics class during the off-season for their sport(s) participate
in an off-season program, which consists of activities like lifting
weights, running, and doing conditioning drills.
- Students do not have to try out for the Tuttle
Middle School softball team. All female students who meet the scholastic
eligibility requirements set by the Oklahoma Secondary School
Activities Association (OSSAA) are eligible to join the team. The
complainant's daughter met the OSSA eligibility requirements. Students
join the team by selecting softball, or having their parents select
softball, on a school enrollment form as one of their elective classes.
There is no limit on the number of students who may join the Tuttle
Middle School softball team, and the team is divided into a varsity team
and a junior varsity team.
- All students who sign up for softball may
participate in team practices and receive a team uniform. Players are
not cut from the Tuttle Middle School softball team based on their
ability level. However, the softball coach selects players for specific
field positions and determines who will play in softball games based on
student skill levels.
- The District's athletic director held an
informational meeting at the Tuttle Middle School in May 2009 for
students interested in playing softball. The complainant's daughter
attended the meeting with the paraprofessional assigned to assist her
during the school day. The athletic director provided the students who
attended the meeting, including the complainant's daughter, a copy of
the softball schedule for the 2009-10 school year. The athletic director
assumed the complainant's daughter took the schedule home to the
complainant but did not know if she actually provided the complainant
the schedule. The complainant indicated to OCR that she did not receive
the schedule.
- The Tuttle Middle School softball team plays fast
pitch softball and has competed successfully for several years against
teams from other schools. During the 2007-08 school year, the Tuttle
Middle School softball team did not lose any games, and during the
2008-09 school year, the team lost only one game.
- In April 2009, the complainant submitted an
enrollment form to the Tuttle Middle School with softball selected as an
elective class for her daughter. The complainant told OCR she chose
softball for her daughter because she played on a Little League softball
team when she was in first grade and because she felt it would help her
daughter's coordination, upper body strength, physical fitness, and
social skills.



May 20, 2009 IEP Meeting

- During the May 20, 2009 IEP meeting regarding the
complainant's daughter, the counselor raised a concern about her
participating on the Tuttle Middle School softball team during the
2009-10 school year. The counselor knew the complainant, or her
daughter, had selected softball as an elective course for the 2009-10
school year because the counselor processed the enrollment forms
students and their parents filled out in April and was responsible for
creating student schedules for the upcoming school year. The counselor,
who has daughters who played softball in the District, stated in the IEP
meeting that she was concerned the complainant's daughter would get
hurt if she was on the softball team. The counselor emphasized in the
meeting that the softball team played competitive softball, not
recreational softball. When the complainant suggested her daughter could
play catcher, where she would be wearing protective gear, the counselor
responded that her daughter could still be hurt by a swinging bat or
injured by the ball. The counselor reiterated in the IEP meeting that
the complainant's daughter could get seriously hurt playing softball,
including during softball practice, and informed the complainant that
her own daughters had been playing softball since they were four-years
old which, according to the counselor, was the case for many of the
players on the Tuttle Middle School softball team. The counselor
suggested in the meeting that the complainant's daughter take an
elective course like vocal (choir) instead of softball. The complainant
was not receptive to that suggestion and stated that her daughter did
not like choir.
- The director of federal programs, who had a
daughter on the Tuttle High School softball team, also expressed concern
during the IEP meeting about the complainant's daughter participating
on the softball team. The director stressed that the Tuttle Middle
School softball team played competitive softball, not recreational
softball. He told OCR he knows the complainant's daughter well and was
concerned she would get hurt on the softball team because of her
tendency to wander off and be inattentive. He also told OCR that most of
the girls who play on the softball team have been playing softball
since they were little and have advanced softball skills. The director
told OCR he was concerned about the complainant's daughter participating
on the softball team, including at softball practices, because he
feared for her health and safety, not because she was a student with a
disability. The director suggested in the IEP meeting that basketball or
track might be more appropriate for the complainant's daughter than
softball. The complainant was not receptive to those suggestions because
she wanted her daughter to play softball.
- One of the complainant's daughter's teachers, who
had a daughter on the Tuttle High School softball team, also expressed
concern during the May 20, 2009 IEP meeting about the complainant's
daughter participating in softball. The teacher told the complainant her
daughter was very impulsive and could get hurt. The teacher suggested
the complainant's daughter sign up for track, which would be safer,
instead of softball for the 2009-10 school year. The complainant was not
receptive to that suggestion. The teacher also mentioned in the IEP
meeting that many of the girls who play on the District softball teams
receive or strive to earn softball scholarships for college.
- During the IEP meeting, members of the IEP team
suggested that perhaps the complainant's daughter could serve as an
assistant to the team without actually playing on the team. The
complainant was not happy with that suggestion and said she wanted her
daughter to play softball. The complainant felt her daughter should be
given the opportunity to practice with the team and play in games even
if she had some limitations due to her lack of softball experience or
disabilities. One or more IEP team members told the complainant that
even if her daughter was on the softball team, they could not guarantee
she would get to play in games because that is a decision made by the
coaching staff. The complainant commented to the IEP team that all they
cared about was winning and that in the District, "It is all about
sports."
- Although members of the IEP team did not expressly
state that the complainant's daughter would be prohibited from
participating on the Tuttle Middle School softball team during the
2009-10 school year, the complainant left the May 20 IEP meeting with
the impression that her daughter would not be allowed to participate on
the team. The director of federal programs told OCR he could understand
why she left the meeting with that impression. Before leaving the IEP
meeting, the complainant told the director of federal programs to find a
sport her daughter could play, or figure out what her daughter would be
allowed to do, and get back to her. Several IEP team members confirmed
to OCR that things were left up in the air with regard to the
complainant's daughter's participation in softball.



Complainant's Daughter's Participation on
the Tuttle Middle School Softball Team

- On May 20, 2009, following the IEP meeting
regarding the complainant's daughter, the director of federal programs
asked the athletic director if the complainant's daughter could
participate on the Tuttle Middle School softball team. The director
identified the complainant's daughter to the athletic director as a
student with a disability. The athletic director told the director she
could participate on the team and recommended that she wear a helmet
with a facemask at all times when on the softball field and start out
practicing with a rag ball instead of a regulation softball. (A rag ball
is softer than a regulation softball.) The athletic director also told
the director he would be happy to meet with the complainant and her
husband to talk about their daughter's participation on the softball
team.
- The athletic director told OCR no student has been
cut from the Tuttle Middle School softball team for any reason during
his tenure with the District and that the complainant's daughter was
welcome to participate on the team. He told OCR students with
disabilities are not prohibited from participating on the softball team
and stated that one of the former star players on the Tuttle High School
softball team was a student with a disability (prosthetic leg). The
athletic director told OCR he and the Tuttle Middle School softball
coach would not put the complainant's daughter in situations where she
would be hurt but would ensure she was able to participate in practices
and, as appropriate, in games. The athletic director said the girls on
the softball team are taught by levels, with the more experienced
players playing catch together at practice, and the less experienced
players playing catch together. He said if there were other students on
the team without prior softball experience, they would also start out
the season practicing with a rag ball instead of a regulation softball.
- The counselor told OCR that following the May 20,
2009 IEP meeting, she enrolled the complainant's daughter in softball
for the 2009-10 school year and also enrolled her in track, which takes
place later in the school year than softball. The counselor said it
would be easier to take her out of track if she decided she did not want
to participate on the track team than to add track to her schedule at a
later time. During OCR's August 2009 on-site to the District, the
counselor provided OCR a copy of the complainant's daughter's class
schedule for the 2009-10 school year, which showed she was enrolled in
softball. The counselor also provided OCR a copy of the class roll for
softball for the 2009-10 school year. The complainant's daughter's name
was on the class roll along with the names of 32 other seventh and
eighth grade students.
- Shortly after the May 20, 2009 IEP meeting, the
complainant contacted the Oklahoma Special Education Resolution Center
(OSER Center) in Tulsa, Oklahoma, with concerns about the amount of ESY
services the District was planning to provide her daughter and her
daughter's participation on the Tuttle Middle School softball team. The
director of the OSER Center talked to the complainant about the Center's
mediation process and contacted the District's director of federal
programs on May 20, 2009 about participating in mediation with the
complainant. According to the director of federal programs, he informed
the director of the OSER Center that the District was interested in
participating in mediation with the complainant. The complainant
contacted OCR and filed her OCR complaint against the District before
learning from the OSER Center that the District was interested in
participating in mediation. The complainant decided to pursue her OCR
complaint instead of the OSER Center's mediation process.
- The principal told OCR that around July 20, 2009,
the athletic director told him he would like the complainant's daughter
to attend the first Tuttle Middle School softball practice, which was
scheduled for Monday, August 10, 2009, and for the complainant to attend
as well if she could. This practice was the only team practice outside
of regular school hours. (The first day of school for the 2009-10 school
year was August 13, 2009.) The principal told the athletic director he
would have the director of federal programs inform the complainant about
the practice. The principal told OCR he conveyed the message to the
director of federal programs and assumed the director informed the
complainant about the practice.
- The director of federal programs acknowledged to
OCR that he did not tell the complainant or her husband about the August
10, 2009 softball practice. He told OCR he had not talked with the
complainant about her daughter's participation on the softball team
since the IEP meeting on May 20, 2009, because he was not sure if it was
appropriate for him to contact her after learning about her request to
engage in mediation through the OSER Center and about her OCR complaint.

- During OCR's on-site interview with the athletic
director on August 6, 2009, the athletic director indicated that he
thought the complainant was already aware of the softball team's first
practice on August 10, 2009, and hoped the complainant would attend the
practice along with her daughter so he could speak with her. The
athletic director also informed OCR that the first Tuttle Middle School
softball game was scheduled for August 13, 2009. He explained that
because so many of the players on the team played softball during the
summer, the team did not need to practice prior to its first game in
order to be competitive. The athletic director provided OCR staff
members his cell phone number for the complainant to call him regarding
softball practice and her daughter's participation on the team. OCR
provided the information to the complainant, and her husband contacted
the athletic director.
- The complainant confirmed to OCR during telephone
conversations on August 18 and October 13, 2009 that her daughter was
placed on the Tuttle Middle School softball team and was allowed to
participate on the team throughout the softball season. The
complainant's daughter participated in softball practices, and the
complainant and her husband worked out an arrangement with the softball
coach regarding which softball games they wanted their daughter to
attend. The complainant told OCR her daughter played in one game.



Additional Information

- A student with a disability (Specific Learning
Disability) participated on the Tuttle Middle School softball team
during the 2008-09 school year.



Analysis and Conclusion

OCR's investigation showed that although members of
the complainant's daughter's IEP team expressed concerns about the
complainant's daughter participating on the Tuttle Middle School
softball team and questioned whether it was appropriate for her to
participate on the team, the District did not actually prohibit her from
enrolling in softball or participating on the softball team. The
complainant confirmed to OCR that her daughter was placed on the
softball team and remained on the team throughout the 2009 softball
season. The complainant told OCR her daughter practiced with the
softball team and played in one softball game. The complainant also
informed OCR that she, her husband, and the softball coach collectively
agreed the complainant's daughter would only participate in certain
games. Consequently, OCR has determined that this issue has been
resolved and is closing Allegation 2 of this complaint as of the date of
this letter.
OCR will monitor the District's implementation of the
Agreement the District entered into to resolve Allegation 1 of this
complaint and address the Section 504 and Title II compliance concerns
OCR identified with regard to the District's grievance procedures for
disability discrimination complaints and failure to provide the
complainant's daughter ESY speech/language services during summer 2009.
When OCR concludes the District has fully implemented the terms of the
Agreement, we will close the complaint. Failure to satisfy the terms of
the Agreement will result in further action by OCR. The determinations
contained in this letter are not intended, and should not be construed,
to address any compliance issues under the regulations implementing
Section 504 and Title II that may exist but are not specifically
discussed herein. Furthermore, OCR's determinations have no bearing on
the appropriateness of the District's actions under any policy,
regulation, or law not discussed in this letter.
This letter is a letter of findings issued by OCR to
address an individual OCR case. Letters of findings contain
fact-specific investigative findings and dispositions of individual
cases. Letters of findings are not formal statements of OCR policy and
they 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.
OCR is committed to a high quality resolution of
every case. If you have any questions regarding this complaint, please
contact Nate Hicks, Equal Opportunity Specialist, at (816) 268-0583
(voice) or (877) 521-2172 (telecommunications device for the deaf), or
by e-mail at nate.hicks@ed.gov.



Resolution Agreement




Tuttle Public Schools

The Tuttle Public Schools (District), Tuttle,
Oklahoma, submit this Resolution Agreement (Agreement) to the U.S.
Department of Education, Office for Civil Rights (OCR), in order to
resolve Allegation 1 of OCR Docket # 07091160 and ensure the District's
compliance with Section 504 of the Rehabilitation Act of 1973 (Section
504), 29 United States Code (U.S.C) § 794, and its implementing
regulation, 34 Code of Federal Regulations (C.F.R.) Part 104, and with
Title II of the Americans with Disabilities Act of 1990 (Title II), 42
U.S.C. § 12131, and its implementing regulation, 28 C.F.R. Part 35.
The District agrees to take the following actions:



Extended School Year Program Services

1. By January 15, 2010, the District develop and
implement a written procedure that ensures decisions regarding the type,
amount, and duration of Extended School Year (ESY) services for
students with disabilities, including students with Individualized
Education Programs (IEPs) and Section 504 Plans, are individualized
determinations made for each student by a multidisciplinary team of
individuals knowledgeable about the student, the meaning of evaluation
data, and placement options.
2. By January 15, 2010, the District will provide OCR
a copy of the procedure it developed to satisfy item 1 of the
Agreement.
3. By January 15, 2010, the District will add
language to its Extended School Year Policy for Students with
Disabilities stating that determinations regarding the eligibility of
students with disabilities for ESY services and the type, amount, and
duration of ESY services each qualified student needs must be
individualized determinations specific to each student's need, and that
the type, amount, and duration of ESY services may not be unilaterally
limited based on factors such as the number of students eligible for ESY
services.
4. By January 15, 2010, the District will provide OCR
a copy of its revised Extended School Year Policy for Students with
Disabilities.
5. Prior to reducing the type, amount, and/or
duration of ESY services for any student, the District will convene a
meeting of a multidisciplinary team of individuals knowledgeable about
the student, the meaning of evaluation data, and placement options to
make an individualized determination regarding the appropriateness of
the change(s) in ESY services. The District will invite the student's
parent(s) or guardian(s) to participate in this meeting.
6. Prior to the end of the 2009-2010 school year, for
each District student who qualifies as an individual with a disability
under the Individuals with Disabilities Education Act (IDEA) or Section
504, the District will convene a multidisciplinary team of individuals
knowledgeable about the student, evaluation data, and placement options.
The team will make an individualized determination regarding the
eligibility of the student for ESY services and, if eligible, the type,
amount, and duration of ESY services the student will receive.
7. By February 1, 2010, the District will provide
training to special education staff and administrators who regularly
participate in IEP or Section 504 meeting regarding the procedure
established pursuant to item 1 of this Agreement.
8. By February 15, 2010, the District will provide
OCR documentation showing it has completed item 7 of the Agreement. The
documentation must include:
(a) the date, time, and location of the training;
(b) an outline, narrative description, or agenda
showing the topics addressed at the training;
(c) a copy of all handouts and other materials
distributed at the training; and
(d) the name and title of each employee who
participated in the training (sign-in sheets with attendees' names and
titles are sufficient).
9. By June 4, 2010, the District will provide OCR a
copy of the ESY IEPs and ESY 504 Plans for all students determined
eligible to receive ESY services during summer 2010 and a copy of the
Consideration for Extended School Year Services form or other
documentation showing how the District determined each student's
eligibility for ESY services, the individuals who attended the ESY
meeting, and the type, amount, and duration of services the student
needed in order to receive a free appropriate public education, and who
made the determination.



Compensatory Services

10. By November 20, 2010, the District will hold an
IEP meeting for the complainant's daughter to determine what, if any,
compensatory reading , math, and/or speech./language services are
necessary to compensate for the District's failure to provide the
complainant's daughter 360 minutes of individualized speech/language
services, as outlined in her ESY IEP for the summer 2009, and failure to
make an individualized determination regarding the amount of ESY
services she was entitled to receive during the summer of 2009. The
District will include the complainant and/or her husband in this IEP
meeting. If the IEP determines the complainant's daughter is entitled to
compensatory services, it will document in writing the factors it
considered in making its determination, as well as the amount, type, and
duration of services the complainant's daughter is entitled to receive,
when and where the services will be provided, and who is responsible
for providing the services. If the IEP team determines in complainant's
daughter is not entitled to compensatory services, it will document n
writing the factors the team considered in making its determination. The
District's decisions and process for determining compensatory services
for the complainant's daughter will be communicated to the complainant.
11. By November 30, 2010, the District will provide
OCR documentation showing it has satisfied item 10 of the Agreement.
12. By November 30, 2010, the District will provide
OCR a list of all students who received ESY services during summer 2009.

13 . By February 26, 2010, the District will hold an
IEP or Section 504 team meeting for each District student who received
ESY services during summer 2009 to determine what, if any, compensatory
services are necessary to compensate for the District's failure to make
an individualized determination regarding the type, amount, and or
duration of ESY services the student was entitled to receive during
summer 2009. If a student's IEP or Section 504 team determines the
student is entitled to compensatory services, it will document in
writing the factors it considered in making its determination, as well
as the amount, type, and duration of services the student is entitled to
receive, when and where the services will be provided, and who is
responsible for providing the services. If the team determines the
student is not entitled to receive compensatory services, it will
document in writing the factors the team considered in making its
determination. All decisions regarding compensatory services for
students will be communicated to the parent(s) and/or guardians of the
affected students.
14. By March 15, 2010, the District will provide OCR
documentation showing it has satisfied item 13 of the Agreement.



Grievance Procedures

15. By January 15, 2010, the District will develop
written grievance procedures that provide for the prompt and equitable
resolution of complaints alleging discrimination on the basis of
disability, including complaints that a student with a disability was
treated differently on the basis of disability compared to students
without a disability. The grievance procedures must:
(a) provide notice of the process for filing a
complaint, including where and in what manner complaints may be filed;
(b) provide for the adequate, reliable, and impartial
investigation of complaints, including the opportunity for all parties
involved to present witnesses and other evidence;
(c) include set time frames for major stages of the
complaint process;
(d) give notice of the outcome of complaints to the
parties involved; and
(e) give an assurance that the District will take
steps, as appropriate, to remedy the effects or and prevent the
recurrence of discrimination of which it has notice.
16. By January 15, 2010, the District will publish
its grievance procedures in its School Policy Manual and will post a
copy of the grievance procedures on its website and in an area
accessible to students, parents, and District staff. The District may
consult with OCR regarding the content of its grievance procedures prior
to publishing and posting the procedures.
17. By January 30, 2010, the District will provide
OCR documentation showing it has satisfied items 15 and 16 of this
Agreement.
18. By August 31, 2010, the District will publish its
grievance procedures in its student handbooks for all grade levels and
will provide OCR a copy of the handbooks.
19. By February 1, 2010, the District will provide
training regarding its new grievance procedures to all individuals
responsible for implement of or participation in the grievance process
outlined in the procedures, including individuals identified as contact
persons. At a minimum, the training must address:
(a) the requirements of Section 504 and Title II;
(b) what types of complaints are covered by the
grievance procedures;
(c) the process for filing a complaint under the
grievance procedures;
(d) how the District will address complaints filed
under the grievance procedures;
(e) the set time frames for major stages of the
complaint process; and
(f) who to contact with questions about the
District's process for reporting or addressing complaints of
discrimination on the basis of disability.
20. The District will provide OCR documentation by
February 15, 2010 showing it has completed item 18 of the Agreement. The
documentation must include:
(e) the date, time, and location of the training;
(f) an outline, narrative description, or agenda
showing the topics addressed at the training;
(g) a copy of all handouts and other materials
distributed at the training; and
(h) the name and title of each employee who
participated in the training (sign-in sheets with attendees' names and
titles are sufficient).