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| Home > Articles > Complaint to the Office for Civil Rights from PIER (Protecting Individuals with Disabilities Education Rights) in Norfolk, Virginia |
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Complaint to
the Office for Civil Rights from PIER (Protecting Individuals with Disabilities
Education Rights) in Norfolk, Virginia
December 1998 Allegations of discriminatory transportation services provided to students with disabilities by the Virginia Beach City Public Schools Virginia Beach City Public Schools (VBCPS) has historically discriminated against students with disabilities by dismissing them before the dismissal of nondisabled students, and thus providing them less education and instruction. Consistent with state law, the VBCPS School Board acting through its Superintendent establishes school hours for students. By terminating the students with disabilities educational program and academics to a significant amount of time before nondisabled students, students with disabilities are provided less time and opportunity for instruction, other education-related services and social opportunities. Students with disabilities who are dismissed before nondisabled students, and while instruction continues after the students with disabilities are dismissed, are shortchanged and denied equal educational benefits afforded their nondisabled classmates who have the benefit of remaining in the school until the end of the school day. Students with disabilities who are dismissed before the end of the school day are given no meaningful opportunity to cover or makeup the instruction, knowledge or benefits they have been denied due to early dismissal. They are denied equal opportunity to learn in violation of their rights under Section 504. VBCPS asserts that students' disabilities who are dismissed before the end of the school day are provided instruction early in the morning. There is no evidence that these students' teachers are providing them the instruction lost due to early dismissal during the period from when school buses drop them off in the morning until the start of the instructional day. Consistent with School Board policy, nondisabled students receive a minimum of 6.5 hours of instructional time per day. In violation of this same School Board policy, students with disabilities are guaranteed only 5.5 hours. In fact, the administrative forms used by VBCPS to create an IEP for a child state that "All students should have the availability of receiving a full day (5.5 hours) program if determined appropriate by the IEP committee and included in the student's IEP." Students with disabilities are dismissed earlier than nondisabled students as indicated by transportation schedules provided by VBCPS in response to the PIER June complaint. To document the early departure of students from schools, members of the community conducted organized observations of school bus departures from school property at 39 randomly selected VBCPS schools. Documented observations by PIER and data provided by VBCPS revealed that at 35 of the 39 observed schools, school buses transporting only students with disabilities departed from schools before the ending time of the instructional day established by the VBCPS School Board and before buses transporting nondisabled students departed from the same schools. The community conducted observations on: February 25, 1998; February 26, 1998; February 27, 1998; March 3, 1998; March 4, 1998; March 5, 1998; March 10, 1998; March 11, 1998; March 13, 1998; March 16, 1998; March 17, 1998; March 18, 1998; March 19, 1998; March 23, 1998; May 29, 1998; June 1, 1998; June 2, 1998; June 15, 1998. A chart detailing the dismissal and bus departure time is enclosed in PIER's June 3, 1998 complaint to the SEA. Throughout the observation period, PIER kept the VBCPS administration appraised of the fact that observations were being conducted. In late spring VBCPS was verbally reminded that PIER intended to file a complaint regarding the early dismissals. Final observations were scheduled, and occurred on June 15, 1998. The morning of June 15, PIER telephoned VBCPS to inform the school district that observations would be occurring that day. When PIER observers arrived at the schools on the afternoon of June 15, they observed buses being rerouted back to school parking lots by security guards and heard announcements on PA systems and bus radios that buses were not to leave school property until the general education students were dismissed. Students with disabilities were observed to be waiting outside of the school building or sitting on buses for up to thirty minutes until the end of the school day for nondisabled students. PIER faxed a handwritten note to VBCPS the next morning, after being unable to reach VBCPS Administration by telephone the afternoon before. The note informed VBCPS that PIER was halting observations because of the hardship placed on the students with disabilities the day before while waiting outside in the heat and on stifling hot buses. Apparently, instructions had been sent by VBCPS Administration to schools on June 15 informing the schools not to allow buses to leave the school property early. However this directive merely stopped buses from leaving early, not students with disabilities from being dismissed before their nondisabled peers. Mr. Mitchell, Director of the Office of Programs for Exceptional Children, VBCPS informed PIER on June 16, 1998 that a memo had been faxed to school building administrators early that morning. The exact content of that June 16, 1998 memo is unknown to PIER. It is assumed to have been a directive to schools to not dismiss students with disabilities early. PIER only knows a memo was sent by fax to prevent the dangerous situation that some students encountered the previous day waiting in the heat. PIER requests that OCR order VBCPS to produce the document sent by VBCPS Administration to schools on June 16, 1998 that references dismissal of students. VBCPS has a predetermined policy that students with IEPs will have a 5.5 hour program as evidenced by the VBCPS's current IEP form that states, "All students should have the availability of receiving a full (5.5 hours) program if determined appropriate by the IEP committee and included in the student's IEP." A copy of the preformatted IEP form that includes this statement is enclosed. Parents are unaware of a single child's IEP that provides for instruction or other benefits to end before the school day ends among those children who are transported on segregated buses. On information and belief none of the affected children have medically fragile conditions that might necessitate their being dismissed early from school. They are dismissed early as a matter of policy. Parents are not advised during IEP meetings or at any other point that their children with disabilities are entitled to a school day of 6.5 hours as provided to nondisabled students. These discriminatory actions are documented by the following: observation charts submitted as Attachment E with PIER's June 3, 1998 complaint to the SEA; July 7, 1998 correspondence from VBCPS to the SEA which states that students with disabilities do in fact not only have different times for departing from school but that the school departure times are routinely and systematically earlier than the school departure times of nondisabled students. VBCPS's IEP forms indicate the need to reflect 5.5 hours of "program" on the IEP, yet VBCPS policy is to provide students with a 6.5 hour school day. Nondisabled students are provided a 6.5 hour school day. Yet the school day for students with disabilities is predetermined to be only 5.5 hours unless the IEP committee determines otherwise. The November 9, 1998 SEA Letter of Findings references information provided by VBCPS regarding several children. VBCPS reports that the individual students reported on all start their day early in order to reach the State required 5.5 hours of instructional time. In these instances, the SEA Findings conclude that all of these randomly selected IEPs require instruction to begin before the beginning of the School Board's established instructional hours. References are made to various times that certain students' school days began. Depending on the shortfall of time, the students' day began before children were supervised or before services were provided. In these instances, the SEA Findings conclude that the child's school day begins prior to the time when teachers are present to supervise and teach. Even the summary information provided by the VBCPS's attorney on Students A - K provides documentation that students with disabilities were treated different from nondisabled students in not only the length of their educational day but in the quality of the length of the day. VBCPS reported that students with disabilities were considered to be receiving instructional time during the early part of the morning before teachers or other support personnel were available to provide services. Students with disabilities who leave the school building before the end of the instructional day are denied the opportunity and quality afforded to nondisabled students. The mere fact that some students with disabilities arrive at school before the beginning of the instructional day does nothing to diminish the responsibility of VBCPS to provide for the same instruction and length of day provided to nondisabled students. Students with disabilities who are educated in general education classes are required to leave those general education classes prior to the end of teacher instruction and social opportunities afforded to nondisabled students. The parents who have submitted letters regarding their children s' educational day represent the hundreds of similarly situated children who were routinely dismissed early merely because they ride special transportation due to their disability. These parents, and others, can provide OCR with direct information regarding the shortening of their child's school day to accommodate school transportation services. Copies of correspondence and documentation resulting from PIER's complaint to the SEA are attached. Included are the following: * June 3, 1998 PIER letter of complaint to SEA * June 10, 1998 SEA letter to PIER and VBCPS acknowledging receipt of complaint and informing of the opportunity for early resolution between parties * June 30, 1998 PIER letter to SEA describing attempts to resolve the complaint * July 1, 1998 VBCPS memo to SEA after attempts to resolve the complaint * July 7, 1998 VBCPS letter to SEA including information requested by SEA * July 23, 1998 PIER letter to SEA responding to the July 7 VBCPS letter * August 3, 1998 SEA request to VBCPS for additional information * August 19, 1998 VBCPS attorney's letter to SEA with requested information * October 9, 1998 PIER letter to SEA responding to the August 19 VBCPS's attorney letter and additional documentation * October 14, 1998 SEA letter to VBCPS and PIER * October 30, 1998 PIER letter to SEA clarifying documentation (letters from parents) submitted on October 9 * November 9, 1998 SEA Letter of Findings to VBCPS and PIER The Virginia Department of Education (SEA) may have additional documentation from their investigation of PIER's June 3, 1998 complaint. Contact Dr. Judith Douglas with the SEA at 804-225-2881 for additional information. Persons involved in these discriminatory acts include Timothy R. Jenney, Superintendent; David Pace, Director of Transportation Services; Robert L. Mitchell, Director of the Office for Exceptional Children; Special Education Administrative Coordinators; Principals, Assistant Principals, teachers and teacher assistants at the discriminating schools; and school bus drivers and bus assistants assigned to the buses providing discriminatory services. Persons who witnessed the discriminatory acts include: Brenda Bondurant, Helen Burroughs, Richard DiPeppe, Jean Drudge, Elizabeth Higgins, Malcolm Higgins, Maureen Hollowell, Suzanne Kumpf, Nancy Niles, Lee Ann Russo, Mary Wilt. Eleven others conducted observations and would prefer not to disclose their names, but will if needed. Section of 504 allegations address: 104.4(b)(1)(i) VBCPS denies students with disabilities the opportunity to participate in or benefit from end of the day school activities including announcements, final teacher directions and other aids, benefits and services that are provided to nondisabled students during the final 5 to 45 minutes of the school day. 104.4(b)(1)(ii) VBCPS does not afford students with disabilities the opportunity to participate in and benefit from instruction and other education-related services that are equal to those provided to nondisabled students. Students with disabilities are routinely required to depart from school property a significant amount of time before nondisabled students, thereby preventing an equal amount of time for instruction, other education-related services, and social opportunities. Students with disabilities are not afforded equal opportunity to participate in school closing activities such as announcements, final teacher instructions and assignments. Students with disabilities who are dismissed before nondisabled students, and while instruction continues after the students with disabilities are dismissed, are not provided equal educational benefits that are afforded to nondisabled students who have the benefit of remaining in the school until the end of the school day. VBCPS provides students with disabilities a shorter school day than provided to nondisabled students. As indicated in correspondence dated August 19, 1998, from VBCPS attorneys, VBCPS identified only two incidences in which the IEP team determined that students with disabilities should be provided a school day unequal in length to nondisabled students. In the correspondence to the SEA regarding PIER's June complaint VBCPS states that the school day provided to students with disabilities is shorter and unequal in length than the school day provided to nondisabled students. VBCPS provides transportation services that result in shorter school days for students with disabilities compared to the length of the school day provided to nondisabled students. VBCPS insists that the school day for students with IEPs is 5.5 hours. However, VBCPS policy states that students will have instructional time of 6.5 hours. The statement on all VBCPS IEP forms indicates a practice that provides for different school day lengths between students with disabilities and nondisabled students. Shortened school days for students with disabilities are not based on educational or health reasons in most instances but rather by the VBCPS's defacto policy evidenced by its preprinted statement on all VBCPS IEP forms that students with disabilities can be provided a school day unequal to that afforded to nondisabled students. VBCPS has consciously decided that students with disabilities with IEPs will not be provided an equal opportunity to learn and to a school day equal in length to nondisabled students. VBCPS denies students with disabilities an equal benefit to be obtained from a 6.5 hour school day. This denial is systemic and predetermined as indicated by the preformatted IEP form, parent experiences and PIER bus observations. 104.4(b)(1)(iii) VBCPS discriminates against students with disabilities by applying a more limited length of the school day for students with disabilities as compared to the length of the school day provided for nondisabled students. This limited day has the affect of providing an education that is not as effective as that provided to others. The majority of students with disabilities need intensive remediation and services in part due to prior mis-education and denial of equal educational opportunity. Their poor performance on large scale tests required by the Virginia Department of Education attest to the need for the majority of these students to receive a free and appropriate education consistent with the high standards adopted by the State. With this intensive need it is inappropriate to shorten the school day for students who perform poorly on State-based testing assessing the extent to which they meet State standards, thus further impeding the students' ability to attain outcomes expected for all others by being provided meaningful educational benefit from their education program. Indeed a strong argument can be made under Section 504 that these students are entitled to additional, supplemental services in order for them to attain outcomes expected for all students. 104.4(b)(1)(iv) VBCPS provides different services to students with disabilities than those services provided to nondisabled students as indicated by the significant differences in dismissal times for students with disabilities than those for nondisabled students. Students with disabilities who may arrive at school early, just the same as nondisabled students for breakfast or transportation reasons, are required to leave school before nondisabled students leave. Students with disabilities are treated different from nondisabled students by leaving the classrooms and school buildings before nondisabled students leave these same classrooms and school buildings. At the time of PIER's observations, none of the buses departing early transported nondisabled students. This fact was established by VBCPS in correspondence to the SEA. VBCPS has acknowledged that there is a difference in the length of the educational day for students with disabilities compared to the length of the educational day provided to nondisabled students. 104.4(b)(1)(vii) VBCPS limits the enjoyment of students with disabilities to the same opportunities provided to nondisabled students including instruction, peer interactions, and routine school-day ending procedures. Students with disabilities must end their school day before nondisabled students as indicated by dismissal times. Instruction, socialization and non-academic activities for students with disabilities are shorter than the instruction, socialization and non-academic activities provided for nondisabled students. 104.4(b)(2) Students with disabilities often require more instruction than that required by nondisabled students in order to afford disabled students with equal opportunity. Yet the students who traditionally struggle the most with learning (students with disabilities) are provided with a shortened school day compared to students who learn more easily (nondisabled students). This inequity in the length of the school day does not afford students with disabilities equal opportunity to obtain the same result, gain the same benefit, or to reach the same level of achievement as afforded to nondisabled students. 104.10(a) VBCPS's obligation to comply with Section 504 of the Rehabilitation Act is not alleviated by the existence of the Virginia Standards for Accrediting Schools which only require students to receive a 5.5 hour school day. VBCPS provides nondisabled students with a minimum of a 6.5 hour school day. Once VBCPS has adopted a standard of its students, it cannot provide a different standard through more limited school hours for students with disabilities and a different set of school hours for nondisabled students. 104.37(a)(1) VBCPS does not provide transportation services in such a manner as to afford students with disabilities an equal opportunity for participation in transportation services provided to nondisabled students. Transportation services for students with disabilities in VBCPS are different from those transportation services provided to nondisabled students in the following ways: many buses transporting students with disabilities load and unload students with disabilities in areas separate from the loading areas used for nondisabled students; students with disabilities endure bus rides longer in duration than nondisabled students; most buses transporting students with disabilities are totally segregated from nondisabled students; and buses transporting students with disabilities are late arriving to school in the morning more often than buses transporting nondisabled students. END OCR COMPLAINT
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