POLICY LETTER December 26, 2007 to Dear Colleague
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POLICY LETTER December 26, 2007 to Dear Colleague PDF
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POLICY LETTER December 26, 2007 to Dear Colleague PDF
UNITEDSTATESDEPARTMENT
OFEDUCATION
OFFICE FOR
CIVIL RIGHTS
THEASSISTANT SECRETARY
DEC26
2007
Dear Colleague:
I am writing to advise you
of an issue involving
studentswith disabilities seeking enrollment in
challenging academicprograms,
such as Advanced Placement and International Baccalaureate
classes or programs (accelerated programs).
Specifically,it has
been reported that some schools
and school districts have refused to allow qualified
studentswith disabilities to participate
in
such programs.
Similarly,we are informed of schools and school districts that, as a condition of
participation in such programs,
have required qualified
studentswith disabilities to give
up the
services that have been designed to meet their individual needs. These practices
are inconsistent
with Federal law, and the Office for
Civil Rights
(OCR)
in the U.S. Department
of Education
will continue to act promptly
to remedy such violations where they occur.
As you
know, OCR is responsible for enforcing
two Federal laws that protect qualified
individuals with disabilities from discrimination.
OCR enforces
Section504 of the Rehabilitation
Act of 1973 (Section
504) and its implementing regulations at 34 CFR Part 104, which prohibit
discrimination on the basis of
disability in programs
or activities receiving Federal financial
assistance. OCR is also responsible, in the education context, for enforcing Title II of the
Americans with Disabilities Act
of 1990 (Title
II) and its implementing regulations
at 28
CFR
Part35, which prohibit
discrimination on the basis of disabilityby entities of Stateand local
government. Although this letter discusses aspects of the Section504 regulation, Title II
provides no lesser protections
than does Section504. Also relevant are the requirements of the
Individuals with Disabilities Education Act (IDEA),
which is
administered by the Department's
Office of Special Education Programs(OSEP).
The IDEA provides
fundsto States and school
districts in
order to assist them in providing
special education and related services to eligible
children with disabilities. The IDEA's implementing regulations
arelocated
at 34 CFR Part
300.
OCR consulted with
OSEPin drafting this letter.'
As an initial matter, I want to commend the efforts so many of you
have made to ensure that
placement decisions for all students are based on each student's individual academic abilities
regardless of the presence,
nature, or severity of a disability. I want to ensure that all of you
are
aware of the Federal civil rights requirements discussed below.
' You may contact
OSEP to address any issues
that relate specifically to the requirements of IDEA.
Contact
information for
OSEP is available online at: http://www.ed.gov/policy/speced/guid/idea/monitor/state-contact
list.html.
4OO MARYLANDAVE., S.W., WASHINGTON, DC 2O2O2.ITOO
www.ed.gov
Our mission is to ensure equal access to education and toprontote
educational excellence throughout the nation.
Page 2 DearColleague Letter: Access
by Students with Disabilities to Challenging
Academic Programs
Prohibition
Against Disability-Based Discrimination in Accelerated Programs
The practice
of denying,
on the basis of disability, a qualified
student with a disability the
opportunity to participate
in an accelerated program
violates both Section504 and Title II.
Discrimination prohibited
by these laws includes,
on the basis of disability, denying a qualified
individual with
a disability the opportunity to participate
in or benefit from the recipient's aids,
benefits, or services, and affording a qualified
individual with
a disability with an opportunity to
participate in or benefit from the aid, benefit or service in a manner that is not equal to that
offered to individuals without
disabilities. 34
CFR 104.4(a), (bxlXi), (bX1)(ii);
28 CFR
35. I
30(a), (b)(1Xi), (bXlXii).
Under Section 504 and Title II, a recipient may not
utilize criteria or methods of
administration
that have the effect
of subjecting qualified
individuals with disabilities to discrimination on the
basis of disability. 34
CFR 104.4(bX4)
and28 CFR 35.130(bX3). A public
entity also may not
impose or apply eligibility criteria that screen out or tend to screen out an individual with a
disability or any class of individuals with
disabilitiesfrom fully
and equally enjoying
any
service, program,
or activity, unless such criteria can be shown to be necessaryfor
theprovision
of the service, program,
or activity being offered. 28 CFR 35.130(bX8). Public
school students
with disabilities who require
special education and/or related
services receive them either
through implementation
of an individualized education program (IEP)
developed in accordance
with Part B of the IDEA or a plan
developed under Section 504. 34 CFR 104.33.
It is unlawful
to deny a student with a disability admission to an accelerated
classor program
solely because of
that student's need for
special education or related aids and services',
or because that student has
an IEP or a plan
under Section 504. The practice
of conditioning participation
in an accelerated
class or program
by a qualified
student with a disability on the forfeiture of special education or
of related aids andservices
to which the student is legally entitled alsoviolates
the Section 504
and Title II requirements stated above.
Please note that nothing in Section504 or Title II requires
schools to admit into accelerated
classesor programs
students with disabilities who would not otherwise be qualified
for these
classes or programs.
Generally, under Section 504, an elementary or secondary school student
with a disability is a qualified
individual with a disability if the student is of compulsory
school
age. However, schoolsmay
employ appropriate eligibility requirements
or criteria in
determining whether to admit students,including
students with disabilities, into accelerated
programs or classes. Section 504 and Title II require that qualified
students with disabilities be
given the same opportunities to compete for and benefit from acceleratedprograms
and classes
as are given
to students without disabilities. 34 CFR 104.4(bx1)(ii)
and 28 CFR
3s.13O(bxlxii).
Furthermore, a recipient's provision
of necessary special education and related aids and services
to qualified
students with disabilities in accelerated classesor programs
mustbe consistent with
the Section 504 and Title II requirements
regarding free appropriatepublic
education (FAPE).
'
The term
"related aids and
services" as used here is intended to include both the Section 504 requirements at
34 CFR 10a.33(c) and the equivalent requirements under the IDEA, i.e. related
services, supplementary aids and
services, program
modifrcations and supports for schoolpersorurel.
See 34 CFR 300.34, 300.42, and 300.320(a)(4).
Page 3 DearColleague Letter: Access
by Students with Disabilities to Challenging
Academic Prosrams
Free Appropriate Public Education
In general,
conditioning participation
in accelerated classes or programs
by qualified
students
with disabilities on the forfeiture
of necessary special education or related aids and services
amounts to a denial of FAPE under both Part
B of the IDEA and Section 504.
Section 504 requires a recipient that
operates a public
elementary or secondary education
program or activity to provide
FAPE to each qualified person
with a disability who is in the
recipient's jurisdiction,
regardless of the nature or severity of the person's
disability. 34 CFR
104.33(a). Under Section 504,
theprovision
of an appropriate education is the provision
of
regular or special education and related aids and services that satisfy certain procedural
requirements and that are designed to meet the individual education needs of persons
with
disabilities as adequately asthe
needs of persons
without disabilities are met. 34 CFR
104.33(bX1)(i). School districts may create a plan
or other document to provide
students with
disabilities with FAPE pursuant
to Section 504. The Section 504 FAPE
requirement may also be
met through the implementation of an IEP developed in accordance with Part B of the IDEA.
34 CFR 104.33(bX2).
Part B of the IDEA requires that FAPE be made available to eligible students with disabilities in
certain age ranges. The IDEA defines FAPE as special education and related services that: are
provided freeof charge; meet State standards; include an appropriate preschool,
elementary
school, or secondary school education; and are provided
in conformity with a properly
developed
IEP. 20 USC
$ 1a01(a)(9);
34 CFR 300.17.'
Participation by a student with a disability in an accelerated class or program generally
would be
considered part
ofthe regular education or the regular classes referenced in the Section 504 and
the IDEA regulations. Thus, if a qualified
student with a disability requires relatedaids and
services to participate
in a regular education class or program,
then a school cannot deny that
student the needed relatedaids and services in an accelerated class or program.
For example, if a
student's IEP or plan
under Section 504 provides
for Braille materialsin order to participate
in
the regular educationprogram
and she enrolls in an acceleratedor advanced history class, then
she also must receive Braille materials for that class. The same would be true for other needed
related aidsand services such as extended time on tests or the use of a computer to take notes.
Conditioning enrollment in an advanced class or program
on the forfeiture of needed special
education or related aids and services is also inconsistent
with the principle
of individualized
determinations, which is a key procedural
aspectof the IDEA, Section504 and Title II. As noted
above, under Section 504, the provision
of FAPE is based on the student's individual education
t
Among other things, an IEP must contain a statement of the specialeducation and related servicesand
supplementary aids and services to be provided
to the child, or on behalf of the child, and a statement of the program
modifications or supports for schoolpersonnel
that will be provided
to enable the child to advance appropriately
toward attaining the annualgoals;
to be involved in and make progress
in the general
education curriculum and to
participate in extracurricular and other nonacademic activities; and to be educated andparticipate
with other children
with disabilities and those without disabilities. An IEP also must contain an explanation of the extent, if any, to
which the child will not participate
with children without disabilities in the regular class and in these activities.
34 CFR 300.320(a)(a)-(s).
Page 4 DearColleague Letter: Access
by Students with Disabilities to
Challenging
Academic Programs
needs as determined through specific procedures--generally,
an evaluation in accordance with
Section 504 requirements.
34 CFR 104.35. An individualized
determination may result in a
decision that a qualified
student with a disability requires related aids and services for some or all
of his regular education classes or his program.
Likewise, the IDEA contains specific procedures
for evaluations and for
the development of IEPs that require individualized determinations. See
34 CFR 300.301 through
300.328. The requirement for individualized determinations is violated
when schools ignore the student's individual needs and automatically deny a qualified
student
with a disability needed related aids and services in an accelerated class or program.
I urge you
to use the information provided
in this letter to continue to evaluate whether your
school district is in
compliance with
these anti-discrimination requirements. OCR remains
willing to continue supporting you
in these efforts. We provide
technical assistance to entities
that request assistance in voluntarily complying with the civil rights laws that OCR enforces. If
you need additional information or assistance on these or other matters, please
do not hesitate to
contact the OCR enforcement office that serves your
state or territory. The
contact information
for each office is available online at:http://wdcrobcolp0l.ed.gov/CFAPPS/OCR/contactus.cfm.
I thank you
in advance for your
cooperation and assistance in this important
matter.
Stephanie J. Monroe
Assistant Secretary for Civil Riehts
TOPIC ADDRESSED: Educational Placements |
SECTION OF IDEA: Other Letters That Do Not Interpret the IDEA But May Be of Interest to Readers
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Last modified on June 14, 2017