After-school Programs & Accommodations

by Robert K. Crabtree

Question:
My 8-year-old son has been kicked out of an after-school program run by a non-profit agency in his elementary school building. He has ADD and some behavioral problems and is on an IEP during his school day. The director of the program said, “He has an innate oddness and intensity about him that frightens the other children.” Don’t they have to try to include him?

Answer:
I’ve received quite a few questions similar to this one over the last few weeks, touching on the responsibilities of private programs to provide services to children with disabilities. The same question comes up for children in public school programs when they do not qualify for special education services, but still need accommodations in order to attend school or participate in various school activities. (One person asked how she could help her brother who uses a wheelchair and has been prevented from attending the same high school as she does because of the high school’s lack of an elevator or lift.)

Student Rights
This is a good opportunity to talk about the rights students with disabilities enjoy under Section 504 of the Rehabilitation Act of 1973 (which applies to programs that are recipients of federal funds) and the Americans with Disabilities Act. I won’t try to be exhaustive here, but will describe some of the basics so you know where to start when this kind of problem comes up. I will speak mostly of Section 504, because its substantive provisions are basically similar to the more recently enacted ADA .

Protection against Discrimination
These laws are intended to protect persons with disabilities against discrimination on the basis of their disabilities. Section 504 defines a person with a “handicap” 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 having such an impairment; or (iii) is regarded as having such an impairment [34 C.F.R. 104.3 (J)(i)].

The “major life activities” contemplated by this law include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Notice that a person is entitled to protection under the law even if s/he is only regarded as having a disability. This means that even if the person has an impairment that does not limit a major life activity, if the program — in this case the school or private program — treats the person as if s/he does have a limiting impairment, s/he is protected. A person is also entitled to the protection of law if their impairment limits a major life activity only because of the attitudes of others toward that disability. Finally, even if a person has no impairment, s/he is still protected if s/he is treated as if s/he has such an impairment.

Students with many different kinds of disabilities have been treated as subject to the protections of Section 504 and the ADA , whether or not their condition also qualifies them for special education and related services under IDEA. Examples of such conditions are: contagious diseases like AIDS or Hepatitis, attention deficit disorder, Tourette syndrome, emotional illness, behavioral disorder, juvenile diabetes, and students who once had IEP’s but are no longer special education students (these are viewed as having a “record” of impairment).

Under these guidelines, I would think your son would find protection against discrimination on the ground that he is diagnosed with ADD and a behavioral disorder and also because he is already subject to an IEP in school. Even if that were not so, it appears that the director of the after-school program regards and treats him as having a handicap, describing him as “having an innate oddness and intensity that frightens other children.”

Reasonable Accommodations
Section 504 and the ADA both require that programs make “reasonable accommodations” to enable persons with handicaps to participate effectively. What accommodations are reasonable depends on the circumstances, including an analysis of the size of a program, its overall budget compared to the potential cost of an accommodation, the potential disruption to a program’s central services that might be caused by the requested accommodation, and other factors.

What an educational program may not do is simply to expel or refuse to allow a person to participate without making any effort to accommodate if it can be done reasonably. In your case, the program should read your son’s IEP, which you should provide for their confidential review, for clues about modifications that may help accommodate him. You may want to let the director consult with teachers and/or with other medical or therapeutic professionals who know your son to develop a plan of accommodations.

Since the program is located in a public school building, you should be able to enlist the help of the school administration in seeking accommodations. Under Section 504 and the ADA , the public school must not contract with an entity that discriminates illegally, and it is likely that the after-school program’s contract includes provisions specifically obligating the program not to discriminate. These requirements may even include some that pertain specifically to meeting the needs of children with disabilities. You should be able to examine the contract (which may be in the form of a lease) as a public document in your school’s administrative offices.

Your approach to the after-school program should be documented — that is, you should write a letter (mark it “confidential”) notifying the program that your son is disabled and specifically requesting appropriate accommodations to enable him to participate. If you make the director understand that you are raising an issue under the ADA or Section 504, s/he will be more likely to treat this as an issue to which s/he must respond with great care. With such a letter, the program’s attorney should advise the director of the program’s obligations under these laws and of the possibility of a claim for damages if the program does not comply.

Enforcement of laws pertaining to discrimination on the basis of disability is available at the federal Office of Civil Rights and most states also provide enforcement through a state agency. An attorney should be consulted regarding the applicable statute(s) of limitations and procedural requirements for bringing such a claim.

Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts . Among other areas of practice, Mr. Crabtree concentrates in special education and disability law.

Copyright 1998 Kotin, Crabtree, and Strong, LLP