My child has a learning disability. Her teachers want her to enroll in advanced classes. She is eligible based on her test scores and school performance.
The School will not let her enroll her because she has an Individualized Education Plan (IEP). What are her legal rights?
Your child has an IEP because she is a child with a disability that adversely affects her education.
Because of her disability, she needs special education and related services.” 20 U.S.C. § 1401 (3). Wrightslaw: Special Education Law, 2nd Ed., p. 49.
Children with IEPs receive protection from discrimination under Section 504 of the Rehabilitation Act (Section 504).
You say your child qualifies for advanced classes and the school will not enroll her because she has an IEP. That sounds like discrimination.
Under Section 504, a person with a disability is someone who has, or whom others regard as having:
- A physical or mental impairment;
- That substantially limits one or more major life activities.
Major life activities include:
- Caring for one’s self;
- Walking;
- Seeing;
- Hearing;
- Speaking;
- Breathing;
- Working;
- Performing manual tasks; and,
- Learning.
Public agencies that receive federal funds have to follow Section 504. Almost all public schools receive federal funds.
A school cannot exclude a qualified student with a disability from participating in any school program solely because of a disability. http://www2.ed.gov/about/offices/list/ocr/504faq.html
Office for Civil Rights (OCR)
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces Section 504 of the Rehabilitation Act of 1973. Schools, parents, and students can ask for technical assistance from the OCR.
You may want to contact the OCR and ask them for help and information.
OCR enforces Section 504 by looking at how schools identify and evaluate students with disabilities. It also makes sure that schools tell students about their rights under Section 504.
When someone files a discrimination complaint under Section 504, the OCR investigates.
You can file a complaint with the OCR and claim that the school is banning your child from advanced classes based on her disability.
The OCR will look at whether the school treats your child differently than it treats nondisabled students who are in a similar situation.
If the OCR agrees with you, it can order the school to stop the discrimination.
If you want to read more about the Section 504 complaint process, click this link:
http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html
Read more about Section 504 by clicking this link:
http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html
Information about Section 504 regulations is available on OCR’s website, at http://www.ed.gov/policy/rights/guid/ocr/disability.html
Read the full text of the Regulations for Section 504 by clicking this link: http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html
More information and resources about Twice-exceptional students:
http://www.wrightslaw.com/info/2e.index.htm
Tags: 2e · Advanced classes · Gifted and Talented · OCR · OCR Complaints · Office for Civil Rights · Twice Exceptional4 Comments
4 responses so far ↓
We had a variation of this problem. My child wants to attend college (4 year) and wanted to take more challenging courses. She has high-functioning autism and LD. We were told we could only put her in Applied or Special Ed classes. She would have to give up Spec Ed Services if she took harder classes. She passed all of her state testing the first time she took them and has been begging for more challenging classes for 2 years. We filed a complaint with OCR and they investigated. The district proposed a resolution because they knew they were in big trouble, OCR accepted and my child ended up with nothing. My child was bullied by teachers and principals and almost had a nervous breakdown. The OCR and state DOE vigorously protected our school district. In hindsight, I would never file a complaint. The cost was too great for my child!
ASDmom, If the email truly says what you are saying at the end of your blog you have evidence to support an issue. Keep that email and contact an attorney that can help. I get angry when I hear that the school makes statements like that especially with laws like No Child BEhind, etc.
I have a twice exceptional child also who attends a special charter school for kids with higher functioning autism. They claim to level the kids based upon skill set but she is in top grade in Elementary school building so it’s not that easy for her to float to their Jr. High in another building due to schedules and social dynamics. The solution – she’s been bored most of the school year. They finally put advanced math in place (online) – it only took 1/2 a year for this to happen despite testing several grade levels ahead at the start of the year. We’ve expressed concern all year and became more direct in our advocacy at the start of 2013. We received an e-mail that said our child had learned all that was required for her grade this year so they didn’t have to do anything different and be grateful if they did – lovely
I have a twice exceptional son. I was told twice that he could not receive support in an upper level class because the school did not have the resources. The school also gave me a hard time when I asked for extended time on certain tests. The school decided to offer him a crash course over the summer in technology to compensate for the lack of personal resources available in the upper level classes. The functional performance data was all subjective (with regard to organization, time management and other exeutive functional skills). I was told that he didn’t need support in the upper level classes because these were areas of strength. I’m not sure why the school felt that his ADHD just magically disappeared in upper level classes when he was receiving IEP support in his general Ed classes. When is their a case for 2E kids?