COMMONWEALTH OF VIRGINIA

DEPARTMENT OF EDUCATION

P.O. BOX 2120

RICHMOND, VIRGINIA 23218-2120

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.



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