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

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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?

  1. I. Was. Treated. The. Same. Way. Went. Was. In high. In San antinio. Texas. I. Was. Wanting. To. Go. Out. For. Band. And. They. Told. Me. That. I was. Not. Allow. To. Go. Into. Band. Just. Because. I. Was. In. Special. Ed. And. I was. Place. In. The. Vac. Work. Study. Program. And. I. Had. To. Work. All. Day. Long. At. Banging. At. Supermarket. To. Earn. School. Grades. To. Graduate high. School.

  2. Hello my name is Yvonne from TX and I have been having issues with several people in my daughters school. my daughter is child with special needs. she was born with Spina Bifida and the kids have been very cruel to her and that hurts me and yesterday was the final straw. the kids from the marching band kept her from participating in the performance ceremony they had. her facial expression and sadness broke me. I felt her pain and it angered me how the band teacher did nothing about it at that moment. she sees a psychiatrist and a counselor due to the bullying and lost of her dad and she has been bullied since the 3rd grade all the way to now 9th grade. I would like to file a complaint against the parents of these kids and band teacher or whoever needs it.

    • The district will have a complaint process that begins with the principal & goes up the chain of command. The student handbook may explain the process or the principal’s or central office can give you a copy of the process. Schools must have a procedure for receiving and investigating bullying. You may want to use this process, if you have not already done so. I work for the TX parent training & information center that assists parents of students with disabilities. You can find our staff person in your area at:

  3. Are there any laws that prohibit an independent music school offering courses specifically designed for students that are special needs?

  4. i was treated the same way went i was in high school. i wanted take band and told me that was not allow in because i was in special ed. this happen in 1984 in san antonio,texas.

  5. So is it illegal to exclude these children from activities such as music and art? If so, can you please lead me to the section of IDEA where it’s covered?

    • Jennifer,

      It is illegal to exclude these kids from these activities. Students with disabilities have a right to play music, go to art class etc.

  6. My ASD son auditioned and got into an “audition only jazz band” by his merits. He has an IEP to reduce visual and auditory distractions. Everyday now the SPED department is bringing in nonverbal students who make all kind of noises that set my son off. His option is that he can only control his behavior or leave the room and that the other students have the right to FAPE. He said they didn’t audition like he did. There are other band non audition classes they could get enrichment from. They aren’t playing instruments. Where does one SPED student’s rights trump another?

    • In this case, I can surmise it is more about scheduling for the students and availability. I have seen where they “fit” them into the available classes based on their schedules, the teacher’s prep time (breaks) and the paraprofessional schedules. Yes, I have been in those same room where they make “noises” during the arts, music, classes, etc. It is all about scheduling and meeting FAPE. There may be other band non audition classes for them but such may not even fit their current schedule. And, they try to group them together. In my case to put as many paras and special ed students in the same special to get it “done.”

  7. At my midddle school,, the elective dance teacher is allowed to “audition” kids for her classes…..& was then allowed to turn all but ONE of these “”rotating”” elective classes into year-long. Of course….No students with IEP”s need apply. if they do, they are not chosen.. The classes are ALL girls, with the exception of two boys (out of about 150 total in all her classes..))

  8. 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.

  9. 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.

    • So sorry, you are incorrect! You do not get to decide who is allowed into band. If the child with special needs requires an aide in the classroom, then that aide should accompany them into band. The child with special needs should be allowed to have all the accomodations and modifications to fully participate in the same level as children without special needs. Your response to the school team should be- it seems he has challenges with participation. What is the school going to be providing to all ow him full access. Youre right, the responsibility should not fall on the band instructor, but it is the school districts responsibility to provide for the assistance needed.

  10. 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.

    • What if you have a child who can’t read and is in middle school? The only option is to pull them from an elective class because they need a specialized reading program. It’s not about test scores, it’s about can this child read and will this child be able to read a job application? Or was it more important that the child bang on the drum in band class in 7th grade?

  11. 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.

  12. 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.

  13. There is so much discrimination of kids who have disabilities in schools. They hurt themselves because research shows that typical peers as well as disabled students benefit when school have inclusion and mentors. No here they have a cleaning program for disabled students only. No text books allowed in the history or science classes for disabled only. no civil rights for kids with disabilities. here.

  14. I am a former public school art teacher. My problem was the staff stated that the IEP only pertained to core classes, so they could put kids with disabilities in a class of 32 other students even though, the accommodations said small classroom setting. One of the many reasons I resigned and never went back.

  15. This happens a lot in our district w/regards to children with life threatening allergies. These students are often moved to another location so that the class can have their precious party full of the student’s allergen (health/safety concern & exclusion). In some cases, the teacher most of the time will tell the parent to bring something else for their child, which sets them apart to be different and makes them a target of bullying. Families are being told to “pitch in” $$ for class parties at the beginning of the year even though their child cannot eat the foods brought in and some cannot participate. It’s exclusion and things like this brings me to a boiling point. I hope Peter Wright will address food allergies in next year in his conference.

  16. In our district, the 6th grade middle school special education students do not get to take the electives Band or Art because they have to take Learning Strategies. You can’t take both due to a scheduling conflict. Since my child is guiding towards a career in Music the child will get to take band but will not have the Learning Strategies which will help in accessing the general education. There is no “win-win” situation. Band is important for social skills. I don’t see why they can’t integrate both or at another time offer learning strategies. There will not be aides available because the district pink-slipped all the non-tenured employes due to the financial shape it is in.

  17. Seems as though these folks have things backward. SE is a service, not a place, just like inclusion. So you begin with the least restrictive environment and move back from there. Students obtaining SE supports don’t need to earn their way into art, music, and PE. You start there and see what supports will allow for success via the IEP if needed. Oh boy don’t get me started. 🙂

  18. It is a catch-22. These students need additional help which they are supposed to get during the school day. They can’t miss lunch, they can’ miss specials, and they end up getting pulled out of core classess for services. So, they miss the primary education. I’m torn. I do disagree with the school unilaterally saying a child must miss art because that is when we choose to provide the service, but if the parents and the school are on the same page, I say, why not.

  19. Many of my students have asked me if I could pull them out of art or music to study with them, do therapy, etc. Most of the time, it’s because they don’t like that class or have conflicts with the teacher. Of course the answer is no.

    An essential part of any special education program is to ensure to the greatest possible extent that children with disabilities have a school day that is like their peers in as many ways as possible. I can’t believe schools are yanking them from these classes.

  20. My child’s Jr. High Band teacher refused to sign the high school schedule card for band because “she didn’t recommend her to take high school band”. I requested PWN asking Why my child could not participate in band.

    The school system and this teacher didn’t respond to my PWN – instead the teacher made a statement at my child’s IEP meeting (obviously prepared by legal counsel) stating that my child’s participation in high school band was the high school band teacher’s decision and not hers. And my child was placed in beginner band class and continues to love this class and is flourishing!

    Parents, written communication works (as I have read so many times on these blogs / newsletters through the years! This is the only way to hold the school system accountable.

    Sure made a difference in my child’s life!!

  21. Music is very valuable in teaching autistics. I saw speech develop and communication start with non verbal students thugh the use of music in my instruction. I was critisied by my principal for using “to much music” even though the songs were directly related to the instructional matieral being presented.
    I have made arrangements for the band teacher to come in my class every two weeks. However this will end when the kids go t the 4th grade.. shame,

  22. This is just so wrong. I always wondered why music isn’t used more in teaching autistic children. My son learned to sing before he could talk. But where I live, there are few opportunities for music and art even for general ed kids after kindergarten, due to budget cutbacks and emphasis on “teaching to the test.”

  23. Please follow the directions given above. It is cruel to the total population to give the message that it is appropriate to shun and separate the disabled. I encourage you to fill out the forms and proceed.

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