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Art & Music for Students with Disabilities – “They Just DON’T GET TO GO!”

by Pete Wright

I am an ESE teacher of students with autism in a self-contained class. The majority of my students are not allowed to go to art and music unless they can be mainstreamed without a paraprofessional’s assistance. My principal told me, “they just don’t get to go.” When I called the ESE department in my district, they told me the principal could make that decision. They said disabled students are only entitled to academics, not electives.

As you have probably figured out, children with disabilities are being discriminated against for reasons related to their disabilities. They are often not allowed to participate in the same activities as children without disabilities.

This is quite illegal and has been so for many years. It is a Section 504 lawsuit waiting to happen.

The school principal has done an excellent job of opening himself, personally and individually, up to a lawsuit where $$$ damages may have to be paid to a plaintiff.

High Risk for Lawsuit

Since the ESE department not only is on notice, but failed to act, they have condoned the principal’s behavior. That ESE department head / individual is also at personal risk. Of course, the school system is at very high risk, not only for a major lawsuit, but a major investigation by Office for Civil Rights.

A case like this usually generates much adverse publicity and head rolling usually follows.

Please feel free to pass this posting on to those individuals.

Or, you may simply suggest that they consult with their own school board attorney about this illegal practice.

Avoid Putting Yourself at Risk

To avoid your putting yourself at risk by being in the wrong place at the wrong time, be sure you express your misgivings to your immediate supervisor. To document the issue and avoid inadvertently becoming a defendant in such a suit, follow up with a nice thank you note to your supervisor. Write to thank him for being willing to listen to your concerns. Be sure that your “thank you note” states your misgivings. If it is not in writing, it was never said, thus the necessity for a written “thank you note”.

On our Wrightslaw website, you will want to read about the case of Doe v Withers where a history teacher had a $15,000 jury trial judgment against him because he refused to follow a child’s IEP.  Doe v. Withers was the first special education jury trial and the first special education dollar damages case. Enter the word “Withers” in the search box and you will find more about the case.

The special education teacher and others got off the hook because, in writing, they disavowed this teacher’s practice and told him to comply with the IEP. The history teacher would not comply because he was arrogant. He was in the state’s general assembly, and, if I recall facts, might have been chair of the education funding subcommittee. However, the jury was not impressed.

Why is Doe v. Withers Significant?

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16 Comments on "Art & Music for Students with Disabilities – “They Just DON’T GET TO GO!”"


I thought FAPE included academic AND extracurricular activities like sports and band. Doesn’t every student with a disability have a right to FAPE? Every student, even if their disability doesn’t “lend” itself to making it easier on the teacher. We can’t just pick and choose the easy kids that get to be in band, or the kids that won’t “distract” a teacher.

This band director sure figured it out.


As the wife of a band director, I’d like to mention that band by its very nature requires the ability to work cooperatively with other students, and to remain quietly focused while the teacher works with other instrument sections. Some disabilities and IEP’s lend themselves to this better than others. In addition, a high school band often takes trips to contests and parades, and the teacher is required to supervise the group in a non-classroom environment. Can your student with disabilities realistically function successfully without distracting the teacher from group duties? If that can be done, then certainly, students with disabilities should be included in the band, but please, don’t expect the band director to be a combination of Superman and your child’s doctor while supervising and directing a group.


I have been a special education and regular education teacher for years. And I will tell what is driving all of this exclusion. The SPED students’ test scores count toward the school and teacher evaluations. This is forcing schools to drill and kill with regard to these precious special education students and the test. Music, art, and other non-academic subjects do not have a test score attached, so they are non-essential classes. Well, if you ask me, these classes are what make learning anything worthwhile. Without art and music life is tedious and dull. FAPE IS BEING VIOLATED every time a special education student who could participate is removed from regular classes to remedial classes that are driven by standardized test scores.


Is your child being separated from the other main stream kids? If so make sure you understand why. Alleging safety; some parents have file complaints with the district demanding that their child be kept “away” from the special needs children.


Happened to my son who is higher functioning. When the other children left with the aide from the special ed class he had to leave as well even though the teacher of the gardening class requested that he be allowed to stay and finish the session with the normal kids from the main stream class. The main stream class teacher refused to allow it as she did not want the responsibility. This was eleven years ago. having well trained teachers is essential.