I have an autistic son and I was wondering if it was possible for the school to exclude him on field trips? It hasn’t happened yet but I just want to know if this is a possibility so I can be prepared for the upcoming school year.
Education Law Attorney
No. Your child's protections come from Section 504 which forbids disability discrimination. Children with disabilities should be included to the maximum extent possible with their fellow non-disabled peers.
Education Law Attorney
I agree with Attorney Schulz, but only wish to add IDEA also ought to protect your child along with section 504 of the Rehabilitation Act.
Both Section 504 of the Rehabilitation Act of 1973 and IDEA mandate that school districts provide disabled students access to extracurricular activities alongside their typical peers.
Section 504 extends two legal principles to non-academic programming. The first principle is that a student with disabilities shall participate with non-disabled students in non-academic settings and extracurricular activities "to the maximum extent appropriate" to the needs of the student with disabilities. 34 C.F.R. § 104.34(b). The second legal principle is that schools must provide non-academic and extracurricular services and activities in a way that allows students with disabilities an equal opportunity for participation in such services and activities. 34 C.F.R. § 104.37(a)(1)
The regulations neither define the term "to the maximum extent appropriate" nor the term "an equal opportunity." Instead, the definition of these two terms has been left to the courts.
Schools that offer physical education courses, or operate or sponsor interscholastic clubs or intramural athletics, must provide qualified students with disabilities with an equal opportunity for participation. 34 C.F.R. § 104.37(b)-(c)(1).
IDEA buttresses the concept that a school is obligated to ensure that students with disabilities have an equal opportunity to participate in non-academic and extracurricular activities along with their non-disabled peers. 20 U.S.C. § 1414(d)(1)(A)(i)(IV) requires that an IEP include:
a statement of the special education and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or, on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child . . . (bb) . . . to participate in extracurricular and other non-academic activities; and (cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this paragraph. See also 34 C.F.R. § 300.107(a) (public agencies must "take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child€™s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities").
Under the IDEA, nonacademic and extracurricular services and activities include:
Special interest groups or clubs sponsored by the public agency;
Referrals to agencies that provide assistance to individuals with disabilities; and Employment of students, including both employment by the public agency and assistance in making outside employment available. 34 CFR § 300.107; Ed 1102.02(o).
In the case of Socorro Independent School District 36 IDELR 180 (TX State Educational Agency (SEA) 2002), a hearing officer ordered the school district to permit a 16 year old student with multiple disabilities to participate in softball games in his position as team manager, over the objections of the varsity coach. The student’s IEP provided for his involvement in extracurricular activities in order to afford social interaction.
In Independent School District No. 12 v. Minnesota Department of Education 788 N.W. 2d 907, 55 IDELR 140 (Minnesota Supreme Court (2010)) (Review denied by the United States Supreme Court ), the court held that the plain language of IDEA requires a school district to provide those supplementary aids and services that have been determined appropriate and necessary by the IEP team to afford the disabled student an equal opportunity to participate in extracurricular activities.
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Education Law Attorney
This is not legal advice. Instead, I include various background legal concepts implicated by your question.
Section 504 and Title II of the ADA are broad civil rights statutes designed to promote equal access to and participation in programs and services. The regulations implementing these laws require that students with disabilities receive benefits and services comparable to those given their nondisabled peers. Specifically, these laws make it illegal for schools to discriminate on the basis of disability by:
1) Denying a student the opportunity to participate in or benefit from a benefit or service,
2) Providing an opportunity to participate or benefit that is unequal to that provided others,
3) Providing a benefit or service that is not as effective as that provided to others,
4) Providing lower quality benefits, services or programs than those provided others, or
5) Providing different or separate benefits or services, unless it is necessary to provide benefits or services that are as effective as those provided to others.
For benefits or services provided to be "equally effective," they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as other students
Section 504 of the Rehabilitation Act of 1973:
"No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to dis-crimination under any program or activity receiving Federal financial assistance ..." Section 504 further defines "program or activity" as "all of the operations of ... a local educational agency," among other entities. The Ninth Circuit has "recognized a private right of action under section 504, and Plaintiffs suing under section 504 may pursue the full panoply of remedies, including equitable relief and monetary damages." See Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1107 (9th Cir.1987). The main § 504 FAPE regulation creates a "comparative" obligation, and "school districts need only design educational programs for disabled persons that are intended to meet their educational needs to the same degree that the needs of nondisabled students are met, not more." Mark H v. Lemahieu, 513 F.3d 922, 936-37. The Ninth Circuit has emphasized that the statute not only prohibits discrimination against the disabled, but also prohibits exclusion from and denial of the benefits of state programs solely based on dis-ability. Id. at 937. Moreover, the court maintained that the focus of the prohibition in § 504 remains on " 'whether disabled persons were denied "meaning-ful access" to state-provided service." Id.
Courts apply the same analysis under the Rehabilitation Act and the ADA. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.1999). Good luck!