STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
E. DOE v. CRANSTON SCHOOL DEPARTMENT
RIDE Case No. 17-17
DECISION
Held: Complainant failed to prove that student was eligible for a Section 504 accommodation or discriminated against on the basis of a disability.
Introduction
This matter concerns a request from Student Doe’s mother that the Cranston School Department reimburse her for the cost of Doe’s private school tuition under Section 504 of the Rehabilitation Act of 1973.
Background
Doe was a 9th grade student at Cranston East High School during the 2012-13 school year. In October 2012, a male student in Doe’s physics class pulled Doe’s sweater down and off her after she resisted his attempt to hug her. The male student was arrested and suspended from school for five days. In April 2013, at an after-school rehearsal for a play, a different male student told a joke and, as the punchline of the joke, touched Doe’s breasts. The male student was arrested and suspended from school.
After the April incident, Doe was unable to return to Cranston East High School. The School Department developed a safety plan for Doe at Cranston East, but Doe’s mother rejected the plan. She also asked that the guidance counselor, school social worker and school psychologist not speak to her daughter.
The School Department proposed that Doe resume her education at Cranston West High School. Doe and her mother agreed to take a tour of Cranston West. Doe saw boys on the tour and did not feel safe. She became upset and was unable to complete the tour. Tutoring was eventually arranged for Doe and she completed the 9th grade at the end of the summer.
In May 2013, Doe’s mother asked the Cranston School Department for a Section 504 accommodation “to send my daughter to an all girls private school of my choosing.” [Complainant Exhibit 1(c)]. Doe’s mother provided a letter from a pediatric doctor at the Rhode Island Hospital Adolescent Health Care Center. The May 15, 2013 letter states as follows:[1]
[Doe] was seen in our adolescent clinic on 5/8/13 for an initial evaluation and has had multiple follow up visits since then She reported symptoms consistent with post traumatic stress syndrome, anxiety and depression that she reports began after 2 incidents of alleged assault by school mates. [Doe] is now attending Bay View Academy[2] and doing significantly better there. She has less anxiety, crying and self harm thoughts (suicidal) or actions
(cutting) now in her new school setting.
It would be advisable for the school system to support [Doe] in her education and safety planning. It would be well within our medical recommendation for this student to not return to Cranston East High School, especially given that the alleged perpetrators remain at that school. The public school system, as it does for other students, might consider alternative site and school placement given the recent situations.
Please feel free to call or consult with us if you have any questions. [Doe] should be supported in returning to a school setting that is physically safe for her, that promotes and supports students reporting bullying, assault, and other abusive behaviors by both students and staff. She has an active interest and continuing her education which is the main goal that we can focus on as she attempts to re-enter the school system. [Complainant Exhibit 2(a)].
Doe’s mother also filed this Section 504 complaint with the Commissioner of Education. Proceedings in the matter were deferred while the 504 accommodation request was considered by the School Department.
On June 6, 2013, the School Department conducted a Section 504 determination meeting for Doe. Doe’s mother did not provide any additional medical documentation. The school psychologist described the evaluation process. The Section 504 coordinator stated that a diagnosis from a psychiatrist was needed. Doe’s mother felt that the School Department psychiatrist had a conflict of interest and stated that she would obtain an assessment from a psychiatrist. According to the meeting notes, the 504 coordinator told Doe’s mother that she was well within her right to do that, but releases would have to be signed giving our doctor access to information and consultation. [Doe’s mother] was also reminded that her doctor’s diagnosis would then by reviewed by the 504 team to determine eligibility. [Doe’s mother] stated she understood. At that point the 504 determination meeting ended... [Complainant Exhibit 5].[3]
In a June 19, 2013 letter to the principal of Cranston East, the director of admissions at Bay View Academy wrote to request records for Student Doe, “who will be attending Bay View Academy in the upcoming school year.” [School Department Exhibit 5].
Doe’s mother provided the Section 504 coordinator with a one-page, unsigned psychiatric evaluation report dated July 22, 2013. It states as follows:
I completed an initial Psychiatric Evaluation on [Doe] on 7/22/13. You know her history perhaps better than I do; in short there were 2 events at Cranston East this past school year where [Doe] was approached by male pears and touched inappropriately. Since the second incident [Doe] has been unable to return to school and is currently completing her 9th grade through tutoring. The reactions [Doe] experience are consistent with reactions we can see following traumatic events, so called PTSD – including anxiety, nightmares, avoidance of the site, etc. I am however a bit confused by the intensity of her reaction; the approach of her male peers in sexually inappropriate ways is certainly unwelcome and should not be tolerated but I am concerned at the devastating effect this has had in [Doe’s] educational story. Although she has improved though use of medication and therapy she still presents as seriously shaken by these events. I hope the Cranston School department will be able to help her resume her education. [School Department Exhibit 1]. A 504 meeting was scheduled for August 20, 2013. On August 7th, Doe’s mother emailed the 504 coordinator stating “I am sorry but I have to cancel our meeting on the 20th of August. I have a family member who is having surgery on that day and I have to be there. Can we make it some time after school starts?” [School Department Exhibit 4]. On August 9th, Doe’s mother emailed the 504 coordinator to confirm that her daughter had enrolled at Bay View Academy.
In a letter dated September 4, 2013, the principal of Cranston East provided Doe’s mother with a final transcript for the year. A copy also was sent to Bay View Academy. The letter further states:
With regard to the 504 request that has been on going, it is my understanding that [Doe] has officially enrolled at Bay View. Since [Doe] is no longer an active student at Cranston East, this request would have to be processed by Bay View. With your permission, I would be happy to forward any information to the proper personnel at Bay View to expedite the process in your request. [Complainant Exhibit 6]. Doe’s mother did not contact the School Department until she emailed the superintendent of schools on June 25, 2014. The email includes the following:
I am seeking alternate placement for my daughter in addition to tuition reimbursement for last year, since she was not given a viable option for a free, appropriate, public education. We had one brief fifteen minute meeting regarding the 504, however none after that. No decisions were ever made... I believe we still need to meet to discuss this issue. [Complainant Exhibit 7].
A meeting was scheduled for July 31, 2014. The School Department’s new 504 coordinator asked Doe’s mother to explain the purpose of the meeting. Doe’s mother referred to the original 504 request from May 2013, to which the 504 coordinator replied by email:
To the extent you are seeking an accommodation for the past 2013-2014 school year, you have filed a complaint at RIDE and that is the forum that should deal with that. If you are looking to reenroll your child Cranston Public Schools for the 2014-2015 school year, we would be happy to discuss any accommodations that you are requesting... [Complainant Exhibit 8]. Doe’s mother responded by emailing “There has never been a follow up or decision to my
504 request. No attempts were ever made to reschedule the meeting on the part of CPS...” [Ibid.].
A meeting was held on July 31, 2014. According to Doe’s mother, the 504 coordinator stated that if Doe were re-enrolled in the school district, a team would be assembled to ensure that
Doe could safely attend Cranston West. The 504 coordinator testified that he told Doe’s mother that if Doe were re-enrolled, the district would resume the 504 process. Doe’s mother testified that, in light of the School Department’s position, she did not submit additional medical documentation she had brought to the meeting. The first document is a February 28, 2014 update from the Rhode Island Hospital Adolescent Health Care Center which states as follows:
[Doe] was seen in our Adolescent Clinic on 5/8/13 for an initial evaluation and has had multiple follow up visits since then related to symptoms associated with post traumatic stress syndrome, anxiety, and depression; she was most recently seen in clinic on February 19 th by my colleague [who wrote the May 8, 2013 letter] (who is currently away, necessitating my writing this letter instead). [Doe] reports that these symptoms began following 2 incidents of alleged assault by school mates in the Cranston Public Schools (Cranston East High School) as described previously in our medical record. [Doe] is now attending Bay View Academy and doing significantly better since starting there last year. She has less anxiety, crying, and self-harm (suicidal) thoughts or actions (cutting) in her new school setting.
It would be advisable for the school system to continue to support [Doe] in her education and safety planning. It would be well within our medical recommendation for this student to not return to Cranston East High School, especially given that the alleged perpetrators remain at that school.
Please feel free to call or consult with us if you have any questions. I am sure that you will agree that [Doe’s] active interest in continuing her education should be encouraged. In addition, she should be supported in this effort in a school setting that is physically safe for her, that promotes and supports students reporting bullying, assault, and other abusive behaviors by both students and staff. [Complainant Exhibit 9]. The second document is an August 13, 2013 social worker’s report which includes the following:
[Doe] was recently evaluated by [an] adolescent psychiatrist [name omitted] at the request of [Doe’s] home school, Cranston East High School. [Doe’s] perception is that faculty and staff at Cranston East High School is minimizing her trauma experiences. She and her mother are asking the school department to help pay for [Doe] to attend Bay View High School (an all girl Catholic high school) instead. The evaluation by [the adolescent psychiatrist] was of poor quality and not helpful to [Doe] in stating her case to the Cranston School Department. As a result, [Doe’s] mother has requested a second opinion evaluation by Dr. Lederer... [Doe] has an appointment for this evaluation on 8/26/13. The hope is that a school meeting to discuss [Doe’s] situation can be postponed until after this evaluation occurs so that Dr. Lederer’s evaluation can be shared with the school department... [Doe] is in need of continuing individual counseling to address PTSD symptoms. [Doe] still experiences anxiety in social situations with others i.e. traveling to England with her grandmother and participating in a fashion design class with her mother as the instructor. I am concerned that, perhaps, [Doe] many need to be on different medication... or add an appropriate medication to treat her anxiety in addition to her depression. I believe it is imperative that she be evaluated and followed by an adolescent psychiatrist such as Dr. Lederer who could consult with me and her pediatrician... and the Cranston School Department. My hope would be that as a team we could coordinate [Doe’s] care more effectively and help her return to school successfully in the least restrictive setting possible. [Complainant Exhibit 10]. One of the social worker’s recommendations was to “[s]ecure an alternative school placement for the 2013-2014 academic school year where [Doe] can continue her learning in the least restrictive environment.” [Ibid.]. The record in this case does not contain a report from Dr. Lederer.
The 504 coordinator testified that Doe never re-enrolled in the district, the School Depart- ment did not have an opportunity to evaluate Doe, and no determination was ever made as to whether Doe was eligible for a 504 plan.
Hearings in this matter were held on March 13, 2015 and April 29, 2016. Memoranda were submitted in July and September 2016.
Positions of the Parties
The Complainant contends that the School Department failed to protect Doe from sexual assault and ignored the seriousness of the assaults she endured. Its violation of the Rhode Island Safe Schools Act[4] and subsequent inaction was the cause of Doe’s post-traumatic stress disorder and her resulting reasonable fear of harm, which is a disability. Because of her fear of boys, Doe could not attend Cranston East or West. The School Department’s failure to offer a viable accommodation or seek a hearing left Doe with no choice but to enroll at Bay View Academy, an all-girls school. Doe was not offered a free appropriate public education on a timely basis, so the School Department must bear the responsibility for Doe’s tuition at Bay View Academy.
The School Department asserts that Section 504 eligibility can be determined only on the basis of an evaluation. Doe’s mother did not give the district an opportunity to complete an evaluation of Doe. The pediatrician’s letter provided at the first 504 determination meeting was insufficient to establish a disability. Doe’s mother decided to obtain her own psychiatric evaluation and did not give the district permission to arrange for an assessment of Doe. She did not sign a release allowing the district to share information with Doe’s doctors. Furthermore, she canceled the follow-up determination meeting and then withdrew Doe from enrollment in the district. Doe’s mother has not met her burden of proving that Doe was eligible for a Section 504 accommodation.
Discussion
Section 504 of the Rehabilitation Act of 1973[5] and its implementing regulations[6] prohibit discrimination on the basis of disability in programs and activities receiving financial assistance from the U. S. Department of Education.[7] Under Section 504, public school districts are required to provide students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met. Section 34 C.F.R. 104.34(a) of the regulations states that a covered educational entity “shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.” A “handicapped person” is defined as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or
(iii) is regarded as having such an impairment.”[8] “[M]ajor life activities” include “functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”[9]
Doe’s mother invoked Section 504 in May 2013 when she provided a letter from a pediatrician and requested an accommodation “to send my daughter to an all girls private school of my choosing.”[10] As a result, the School Department was under an obligation to conduct an evaluation of Doe “before taking any action with respect to the initial placement of the person in regular or special education...”[11] Section 504 regulations do not provide a specific timeline for conducting this evaluation, but it must be conducted within a reasonable period of time.[12] A 504 determination meeting was held on June 6th. At that meeting, Doe’s mother declined the district’s offer to conduct a psychiatric evaluation and opted to obtain one of her own. She previously had prohibited the School Department’s guidance counselor, school social worker and school psychologist from speaking to Doe. In July she provided a one-page, unsigned report from a psychiatrist for consideration at the meeting scheduled for August 20th. She then canceled the meeting and confirmed Doe’s enrollment at Bay View Academy. The evidence does not establish that she signed a release allowing the district to share information with Doe’s medical providers. When the School Department wrote to Doe’s mother on September 4, 2013 stating that her request for accommodation would have to be processed by Bay View, she did not contact the district until she emailed the Cranston superintendent on June 25, 2014 renewing her request to “send [Doe] to an all girls private school of my choosing... in addition to tuition reimbursement for last year...”
The School Department argues that Doe’s mother did not prove her daughter’s eligibility under Section 504 before she was enrolled at Bay View Academy and that this enrollment ended any potential School Department Section 504 responsibility for Doe. While we do not agree that a public school district’s obligation to evaluate a student under Section 504 and offer him/her a free appropriate education if found to be eligible expires upon enrollment in a private school,[13] we find that the evidence in this case does not show that Doe was a “handicapped person” under Section 504 at any time herein.
To be eligible under Section 504, a student must be determined, as a result of an evaluation, to have a “physical or mental impairment which substantially limits one or more life activities.” The evaluation should be based on information from a variety of sources, including teachers, other school staff, parents and the student. It also should include records, assessment data or medical reports related to the suspected physical or mental impairment.
This 504 referral was made by Doe’s mother, not the school district. By making the referral, she initiated the evaluation process. It was within Doe’s rights and discretion as a parent to obtain her own psychological assessment of Doe, as well as to prohibit school support staff from speaking to Doe. Parents control the flow of information between the school district and treatment providers, and Doe’s mother exercised control. Obviously, this affected the amount of information about Doe’s condition that was made available for the evaluation. Doe’s mother was allowed to present all of Doe’s medical documentation at the hearing, and this material suggests that Doe had a mental condition which affected her ability to attend school. The precise nature of her condition and the extent of its effect need to be determined.
A medical diagnosis of an illness does not automatically mean a student can receive services under Section 504. The illness must cause a substantial limitation on the student's ability to learn or another major life activity. As stated by the U.S. Department of Education, Office for Civil Rights,
The term "substantially limits" is not defined by Section 504 or Title II [of the Americans with Disabilities Act] and is subject to interpretation on a case-by-case basis. Title II, however, provides three factors which characterize the term "substantially limits." These three factors are: (1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent, long term impact or expected impact of the impairment.[14] The Americans with Disabilities Act (ADA) Amendments Act, enacted in 2008, authorized the United States Attorney General to issue regulations under Title II of the ADA with regard to the meaning and interpretation of the term “disability.” The regulations added rules of construction to be applied when determining whether an impairment substantially limits a major life activity. Section 28 CFR 35.108(d)(1)(i) of the regulations states, in part, that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard.”
At the hearing, Complainant was given the opportunity to place into the record all medical documentation related to Doe’s impairment. That documentation contains flaws which diminish its probative value. The May 15, 2013 pediatrician’s letter includes erroneous statements about Doe’s education and condition. The psychiatric evaluation report dated July 22, 2013 is unsigned and lacks detail. The February 28, 2014 pediatrician update essentially repeats portions of the May 15, 2013 letter. The August 13, 2013 social worker report discusses a second-opinion psychological evaluation and recommended course of treatment of which no evidence was presented at the hearing. As for the nature and impact of Doe’s condition, the medical documentation does not link it to a major life activity, such as learning or interacting with others. It clearly recommends that Doe not return to Cranston East High School and that she be given an alternate placement. In doing so, it refers to the Cranston school district and does not rule out a placement at Cranston West High School. Most importantly, there is no mention of Doe’s inability to attend a co-ed school or her need to receive an education at an all-girls school.
Although the term “substantially limits” is not a demanding standard, it is a statutory requirement which Section 504 claimants must meet. Not every impairment is a disability under Section 504. The evidence in this case contains references to Doe’s post-traumatic stress disorder, depression and anxiety, but it fails to describe how any of these conditions substantially limited one of Doe’s major life activities. There is hardly a shred of reliable evidence relating to the previously-mentioned three factors which characterize the term “substantially limits.” The nature, severity, duration and impact of Doe’s alleged impairment are essentially unknown. Complainant chose to be the source of information about Doe’s condition, but she did not provide objective data showing how an impairment affected a particular life activity of Doe. The sole fact that Doe was unable to complete a tour of Cranston West High School does not prove that she has a condition which prevents her from receiving an education in a co-ed setting. The record in this case, including the medical documentation that was not given to the School Department in 2014, lacks the minimal amount of evidence needed to show that Doe’s impairment substantially limited a major life activity. Complainant has not met her burden of proving that Doe has a disability under Section 504 or that the Cranston School Department discriminated against Doe on the basis of a disability when it did not provide her with a placement at Bay View Academy.[15]
Conclusion
Complainant has failed to prove Doe was eligible for a Section 504 accommodation or discriminated against on the basis of a disability. The complaint is therefore dismissed.
Footnotes
[1] All quotes from letters, emails and reports referenced in this decision are exactly as they appear in the source text.
[2] An all-girls school located in East Providence.
[3] Doe’s mother testified that she signed a release to share medical information, but was not given a copy of it. The 504 coordinator did not recall Doe’s mother signing a release and testified that Doe’s file did not contain a signed release. In a June 6th “recap” of that day’s meeting sent by email, Doe’s mother noted her preference “to use an independent Psychiatrist for any further evaluation [which]... would be okay as long as we sign a release for the psychiatrist to share their findings with the school department. I agreed to this and will keep you posted on the name of the psychiatrist we will be using.” [Complainant Exhibit 4].
[4] R.I.G.L. 16-21-33.
[5] 29 U.S.C. §794.
[6] 34 C.F.R. 104.
[7] R.I.G.L. 42-87-2 prohibits discrimination on the basis of disability “by any person or entity doing business in the state...” R.I.G.L. 42-87-5(c) authorizes the Commissioner of Education to hear all complaints relating to disability discrimination in the area of elementary and secondary education.
[8] 34 C.F.R. 104.3(j).
[9] 34 C.F.R. 104.3(j)(2)(ii).
[10] She also requested a hearing by filing this complaint in May 2013.
[11] 34 C.F.R. 104.35(a).
[12] See, e.g., Community High Sch. Dist. 155 (IL), 51 IDELR 228 (OCR 2008) (five-month delay between referral and evaluation); Tracy (CA) Unified Sch. Dist., 115 LRP 17619 (OCR 02/11/15) (four-month delay between parent's request and evaluation).
[13] Section 504 requires school districts to "undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education." 34 CFR 104.32 (a). The school district must evaluate these children and, if found to be eligible, create Section 504 plans for them. If a resident child attending private school chooses not to enroll in the district, Section 504 does not require the district to provide any services to the child provided it has made a free appropriate public education (FAPE) available to the child on the same terms as to all eligible children within its district. D.L. v Baltimore City Board of School Commissioners, 706 F.3d 256 (4th Cir. 2013). If there is a dispute about whether the 504 plan provides FAPE, the parents may have the dispute resolved by the Commissioner of Education pursuant to R.I.G.L. 42-87-5(c).
[14] Snowflake (AZ) Unified School District, 102 LRP 38676 (OCR 03/24/98).
[15] To the extent Complainant is seeking tuition reimbursement as a remedy under the Safe Schools Act, we note that this claim was not set forth in the Section 504 complaint herein. Furthermore, the evidence in this case does not establish how the school district failed to exercise reasonable care against foreseeable risks of personal injury or harm to Doe.
Paul E. Pontarelli
Hearing Officer
Approved:
Ken Wagner, Ph.D.
Commissioner
Date: July 26, 2017