DEPARTMENT
OF EDUCATION
P.O.
SUPTS. MEMO NO. 198
August 29, 2008
INFORMATIONAL
|
TO: |
Division Superintendents |
|
FROM: |
Billy K. Cannaday, Jr. Superintendent of Public Instruction |
|
SUBJECT: |
Equal Access for
Students with Disabilities to Challenging Programs and Courses |
The purpose of this correspondence is to
remind local education agencies (LEAs) of their continuing responsibility to provide
students with disabilities equal access to academically- challenging programs
and courses offered within their school divisions and in conjunction with other
divisions. The requirements regarding
this issue are outlined in Section 504 of the Rehabilitation Act of 1973 (34 CFR Part 104), Title II of the Americans with Disabilities Act of 1990 (28
CFR Part 35), and the Individuals with
Disabilities Education Act (34 CFR Parts 300 and 301).
Under Section 504 and Title II, LEAs 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(b)(4) and 28 CFR 35.130(b)(3)). More
specifically, LEAs 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 disabilities from fully and equally enjoying any service,
program, or activity, unless such criteria can be shown to be necessary for the
provision of the service, program, or activity being offered.
The practice of
conditioning participation in an accelerated class or program for a qualified
student with a disability by requiring forfeiture of special education or
related services to which the student is legally entitled is in direct
violation of Section 504 and Title II regulations. Additionally, it amounts to the denial of
free appropriate public education (FAPE) under both Part B of IDEA and Section
504. This practice is also inconsistent
with the principle of individualized determinations, which is a key procedural
aspect of IDEA, Section 504, and Title II.
The requirement for individualized determinations is violated when
schools ignore the student's individual needs and automatically deny a
qualified student with a disability the needed related aids and services in an
accelerated class or program. Because participation by a student with a
disability in an accelerated class or program is generally considered part of
regular education or regular classes referenced in Section 504 and IDEA, a LEA may
not deny that student the needed related aids and services in these programs or
courses.
While nothing in
Section 504 or Title II requires LEAs to admit students with disabilities into
accelerated classes or programs who would not otherwise be qualified for them,
these regulations do require that qualified students with disabilities be given
the same opportunities to compete for and benefit from accelerated programs and
classes as are given to students without disabilities (34 CFR 104.4(b)(1)(ii) and
28 CFR 35.130(b)(1)(ii)).
Please use the
information provided in this memo to continue to evaluate your school
division's compliance with Section 504, Title II, and IDEA. For more information, you may contact Dr.
Sandra E. Ruffin, director of federal program monitoring, at Sandra.Ruffin@doe.virginia.gov
or (804) 225-2768. You may also contact
Mrs. Bonnie B. English, civil rights monitoring specialist, at Bonnie.English@doe.virginia.gov
or (804) 225-2618.
BKCJr/BBE/dct