To qualify for a 504 plan, a physician must first sign a statement (1) identifying the student’s disability or health need, (2) an explanation why the student has a dietary need or allergy, (3) an explanation how the disability or health need constitutes a major life activity, and (4) an explanation what the school can do to address the matter. The next step will be to share this information with school personnel and schedule a meeting to develop a 504 plan.

What types of 504 accommodations might be available to students who have special dietary needs or food allergies? Consider these examples:

• Diabetes
  • Schools may be obligated to hire a certified school nurse or RN in the building when there are diabetic students in schools.
  • School staff may be required to ensure that a student with diabetes eat snacks throughout the day.
  • School staff may be required to know where insulin and hypoglycemia supplies are stored.
  • School staff may be required to monitor glucose levels.
• Cystic Fibrosis
  • Students with cystic fibrosis may require additional calories, and the school may be required to provide either larger food portions or a high calorie diet.
• Allergies
  • A student is allergic to a specific food ingredient. The school nutrition staff may be required to make food substitution or modifications.
  • The school nurse may be required to be trained to give epinephrine to alleviate allergic reactions.
• Feeding difficulties
  • A student cannot chew solids and must consume liquid diets. The school nutrition staff may be required to provide a liquid diet.
  • School staff may be required to hire a qualified person to assist a student who feeds through a tube.
  • School staff may be required to assist a student who is unable to feed herself.

The United States Department of Agriculture has an excellent primer titled “Accommodating Children with Special Dietary Needs in the School Nutrition Programs.” The entire 59 page manual is available here. (If you want even more information beyond the USDA’s primer, check out this 200 page course manual.) The USDA also has published other resources here.

Guidance to developing a 504 plan for food allergies may be found here. A sample 504 plan for students with diabetes may be found here and there. The American Celiac Disease Alliance has a model 504 plan for students with celiac disease.

© 2010, Matthew Stoloff. All rights reserved.

Food Allergies and Special Dietary Needs in School originally appeared on Matthew Stoloff's Blog on June 28, 2010.

Related posts:

1. Students with Disabilities and Extracurricular Activities
2. Mohawks, Tattoos, and Facial Piercings… in School
3. Are IEPs Necessary for Service Animals?
4. School Bullying, Intimidation, & Harassment
5. Services at Public Expense for Students with Disabilities in Private Schools

School bullying, intimidation, and harassment can cause serious harm. Children who have suffered from repeated acts of bullying and harassment become afraid to go to school. In rare cases, students like Ryan Halligan and Phoebe Prince commit suicide because they could no longer withstand the emotional and physical abuse that the bullies had inflicted upon them. In extremely rare cases, bullies will use dangerous weapons; such was the case in the February 2008 fatal shooting of Larry Fobes King.

First things first: No child should be bullied, intimidated, or harassed. Fortunately, most states, including New Jersey, have anti-school bullying laws. (To see which states have anti-bullying laws, see this website.) While there are no federal laws that specifically target school bullying, some attorneys have been successful in utilizing Title IX of the Educational Amendments of 1972, Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act to address bullying, intimidation, and harassment. Depending on the facts of the case, some attorneys have also been successful in applying state-specific anti-discrimination laws as well.

Second, never feel that contacting an attorney early is too rash. Too often, people think of attorneys as the go-to professionals when the situation has escalated to an extremely bad situation. Instead, one should think of attorneys like medical doctors: treat the problem early before it gets worse. To prevent a bad situation from escalating into a worse situation, contact an attorney who can help resolve the bullying and harassment issues. If you don’t have an attorney and don’t know of one, now is the time to look for one and establish a relationship. (Two good starting points are The Yellow Pages for Children with Disabilities and Justia.) Even if you end up not retaining an attorney for a bullying issue, at least you have communicated with an attorney who can help you with other legal matters, such as special education matters, in the future. Thus, if you liked the attorney that you communicated with, you know who to turn the next time there is a possible legal issue.

Third, some states require that schools implement an anti-bullying policy (see New Jersey’s model policy). Furthermore, schools may be required to distribute this policy to parents. If your child’s school has a website, New Jersey law requires that the school post the anti-bullying policy on its website. The anti-bullying policy is always a great starting point. If you can’t find the policy on the school’s website, call the office and have them send you a copy in the mail or via email.

Fourth, document everything. I cannot stress this enough. Document when the incident took place, what happened, who was involved, and where it occurred. For clarity, be sure to write down the What, Who, Where, and When, as well as the How. If you know Why the incident occured, or if your child has a theory, write it down.

Fifth, any time you communicate with school personnel by telephone, follow up the conversation in writing. Write clearly, concisely, and politely. Watch your tone. The purpose of the letter is to reinforce the idea that the bullying/harassment issue is something that needs to be addressed, not forgotten. When you write your letter, do your best to put your emotions aside. Look at the situation objectively. Describe what has happened and how this has affected your child’s self-esteem, social interactions, and academic success.

When all else fails, an attorney can take action on your behalf. How an attorney handles the issue will depend on a number of factors. If the situation is recent, a few letters may be all that are needed. (A letter or three from an attorney can be quite effective.) If the situation has been is pervasive and has been going on for a long period of time, and the parent has sufficient funds to litigate the matter, an attorney can file a lawsuit.Other, less expensive alternatives such as mediation, may help. There may be many roads to consider, and you need to discuss these issues openly with your attorney.

Bullying, intimidation, and harassment in schools are serious issues. Bloggers like Moms Against Bullies recognize how badly children can suffer verbal and physical abuse at the hands of their peers. Attorneys like Jen Laviano, special education law websites like Wrightslaw, and anti-bullying websites like Stop Bullying Now! recognize the necessity of addressing the issue as early as possible, before a bad situation becomes a worse situation. Students, parents, teachers, and school personnel must learn from the Ryan Halligan, Phoebe Prince, and Larry Fobes King tragedies.

Remember, when you help stop school bullying on behalf of your child, everyone in your child’s school will benefit.

© 2010, Matthew Stoloff. All rights reserved.

School Bullying, Intimidation, & Harassment originally appeared on Matthew Stoloff's Blog on March 15, 2010.

Related posts:

1. Mohawks, Tattoos, and Facial Piercings… in School
2. Food Allergies and Special Dietary Needs in School

Caption: A high school student with a mohawk takes notes in class.

In 1969, several high school students, aged 13 to 16, wore black armbands to protest the Vietnam War. Concerned that the black armbands might cause a disturbance among school students, the school administration imposed a ban on wearing these armbands and subsequently suspended five students who chose to ignore the ban. The students’ parents filed a federal lawsuit against the school on the grounds that the school’s policy violated freedom of speech under the First Amendment. The case went all the way up to the Supreme Court of the United States.

This case, commonly referred to as “Tinker,” is a famous and widely-cited constitutional law case: It is mandatory reading in law school. In virtually every lawsuit involving students, schools, and free speech, the parties will cite this case in support of their respective positions.

So what happened in Tinker? Based on the facts presented, the Court could not find any indication that the armbands disrupted the school environment. Unless the armbands would cause a disturbance in the school or violate the rights of others, the Court held that the school could not restrict a student’s right to free speech under the First Amendment. Perhaps the Court’s most famous statement is the following:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

None of this is to say that children are free to say or dress what they please. Tinker was about the right of students to express their political views and under what circumstances school administrators may restrict the right of students to express themselves. Over the years, numerous First Amendment cases based on different facts have been litigated. For example, if a student expressed his political views using profane language, the courts have agreed that the school administration may prohibit offensive, vulgar, and obscene speech, and the school may discipline the student (see, e.g., Bethel v. Fraser).

But what about students’ First Amendment rights to wear tattoos (Stephenson v. Davenport Community School District), facial piercings, and unique hair styles (Massie v. Henry; King v. Saddleback) in school? Perhaps not surprisingly, the courts struggle with these issues, and not all courts agree with other courts. Indeed, as fashion changes over time, the courts must adapt and recognize the rights of young people while appreciating the latest fashion trends. The courts are mindful of a particular paragraph in the Tinker decision:

“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

Thus, when attorneys get into an intellectual argument about student freedom of speech, attorneys must choose their words wisely. They must answer hard questions: Is it political speech? Is it obscene? Will the speech disrupt the school environment? Is it speech that will encourage violence? These are not easy questions.

When a student wears a shirt that reads, “Gay Pride,” is it political or offensive? How about a shirt that reads “Be Happy, Not Gay“? Political, offensive, disruptive? When a student wears a shirt that supports the National Rifle Association that contains a photograph of a gun, will this encourage violence? When a student wears a removable tattoo on the back of her exposed neck that says, “I heart Obama,” is it political or obscene? When a student wears an anti-abortion sweatshirt with a photograph of a dead fetus, is it political, obscene, or both? Will a photo of a dead fetus likely to incite anger among students and teachers and cause disruption in the school? Despite all the years that have passed since 1969, we are still struggling with the same questions.

Caption: A young lady with multiple facial piercings.

With regard to First Amendment cases involving students who have tattoos, rainbow-colored hair, mohawks, or multiple facial piercings, I often wonder how the New Jersey courts (or any court in any jurisdiction) will decide. Political? Offensive? Obscene? None of them above? There are so many variables and different ways of looking at the same issues. The outcome of any case will often depend on the particular facts and who is the judge. Sometimes, the court will “punt” the hard questions and decide on the easier questions. For example, rather than determining whether a student may wear tattoos in school under the First Amendment, it may be easier for the court to decide whether the school’s policy is vague. If it is, then the student may win the case — unless, of course, the school appeals or changes its policy. Sometimes, the court never has an opportunity to answer the question because the case is settled out of court.

In Fighting Oppressive School Dress Codes, an attorney writes about how the courts have dealt with tattoos, piercings, and hair color. That article is an excellent starting point for anyone who wants to research these issues further. For a more philosophical and sociological point of view, I highly recommend Gowri Ramachandran’s paper, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing.

As for the two friends I mentioned at the beginning of this post? I found them again almost eighteen years later. Neither has long hair or a mohawk any longer. And they’ve done very well for themselves. I haven’t asked them if the school administrators requested that they change their hairstyles. Maybe I’ll ask them someday. In the meantime, I thank them for giving me the inspiration to write this article. And to all those who choose to wear unique hair styles for personal, social, or political reasons, I say to them: rock on.

© 2009, Matthew Stoloff. All rights reserved.

Mohawks, Tattoos, and Facial Piercings… in School originally appeared on Matthew Stoloff's Blog on December 14, 2009.

Related posts:

1. Food Allergies and Special Dietary Needs in School
2. School Bullying, Intimidation, & Harassment

The importance of extracurricular activities cannot be overemphasized, particularly for students with disabilities who are mainstreamed because it provides an opportunity for them to learn new skills, improve their talents and self-esteem, and develop relationships with their peers. In addition, when students with disabilities participate in extracurricular activities, other “nondisabled” students will look past one’s “disability” and focus more on one’s talents and skills.

Therefore, it is important that parents understand that students with disabilities have the right to participate in extracurricular activities at school.

The federal law known as Section 504 of the Rehabilitation Act requires that public schools provide students with disabilities equal opportunities to participate in extracurricular activities as their non-disabled peers. For those who enjoy reading regulations may refer to 34 CFR Section 104.37.

Many schools must also comply with another applicable federal law that prohibits discrimination on the basis of disability: The Americans with Disabilities Act. Like Section 504, the regulations that public entities (which include schools) must adhere to under the Americans with Disabilities Act are stringent.

Children with disabilities may also be protected by another federal law known as The Individuals with Disabilities in Education Improvement Act. This is a very important law that affords children with disabilities the right to a “free and appropriate education.” A “free and appropriate education” may include gym classes, including physical and occupational therapy, as well as any extracurricular activities that may be available to the general student population.

Under these federal laws, schools must not discriminate against students on the basis of disability and may be required to implement necessary modifications or provide accommodations in order for students with disabilities to participate in extracurricular activities.

Here are a few concrete examples:

1. A student with diabetes who tries out for the cheerleading team may not be excluded because she may need to give herself insulin.
2. A student with autism or Asperger’s Sydrome may not be excluded from participating in Tae Kwon Do classes because he or she is non-verbal.
3. A deaf or hard-of-hearing student may be provided a sign language interpreter to help facilitate communication at a student government club meeting.
4. A student who is blind may be permitted to touch the chess pieces on the board or have someone verbally explain where a piece has been moved to.
5. A school would be required to provide wheelchair accessible mode of transportation for a disabled student who wishes to participate at an off-site, school-sponsored music training program.
6. A student with mobility issues who wants to play golf but cannot walk long distances may ride in a golf cart.
7. A student who is allergic to nuts may join a baseball team and ask the school to implement a policy prohibiting all team players from bringing, eating, or spitting out sunflower seed shells, pumpkin seeds, and peanuts.

Additional examples of modifications and accommodations are provided in this wonderful article titled, “‘I Know I Can Do It’: Sports are for Disabled People Too.”

Over the years, there have been many interesting cases involving students with disabilities who were denied from participating in extracurricular activities. A summary of some of these cases may be found here and there.

The purpose of this article was to inform parents that extracurricular activities play an important role in every child’s life. Children with disabilities who participate in extracurricular activities develop skills and talents and friendships. Children with disabilities have the right not to be discriminated against on the basis of disability. Moreover, schools may not deny children with disabilities the opportunity to participate in extracurricular activities.

If your child has a disability and is interested in participating in an extracurricular activity, but has not been able to do so, your child may be a victim of disability discrimination. It is important that you advocate on behalf of your child and speak with the school to find out why your child has not been afforded an opportunity to participate in an extracurricular activity of his or her choosing. If you are unable to make headway with the school, you may wish to consult with a child advocate or a special education attorney for assistance.

© 2009, Matthew Stoloff. All rights reserved.

Students with Disabilities and Extracurricular Activities originally appeared on Matthew Stoloff's Blog on November 16, 2009.

Related posts:

1. Services at Public Expense for Students with Disabilities in Private Schools
2. College Bound Students with Intellectual Disabilities
3. Twice Exceptional Students: A Primer
4. Are IEPs Necessary for Service Animals?
5. Special Education Services in Charter Schools

In a previous blog post, I discussed the law and issues relating to service animals who accompany children with disabilities to school. Thus far, I have not discussed whether it is necessary to have an Individualized Education Plan (IEP) in order to bring a service animal to school. Those of you who have been reading my blog for some time probably know the answer to this question.

Caption: A boxer dog lies down with her head on a laptop.

Briefly, an Individualized Education Plan (IEP) is a written document that consist of goals and objectives agreed to by the parents and school district on behalf of an eligible child with a disability. The IEP will also contain the necessary accommodations, modifications, and services that the school must provide in order for the eligible child to gain a meaningful and beneficial education.

The IEP is governed by a federal law known as the Individuals with Disabilities Education Improvement Act (IDEIA [but commonly referred to as IDEA]), which guarantees eligible children a free and appropriate education.

Ideally, and when appropriate, the IEP should be designed to address the child’s educational, developmental, social, and functional needs. Thus, once a child has been identified as an eligible child, parents and the school district will meet to discuss what accommodations the child needs, what modifications are necessary for the child, and what other services the child requires in order to develop intellectually, physically, and emotionally. For additional information on IEPs, I recommend visiting Jennifer Laviano’s Connecticut Special Education Lawyer blog, the A2D Educational Advocates blog, and The WrightsLaw Way.

There seems to be conflicting information on the internet whether service animals are required to be in the IEP. This confusion is natural because the Individual with Disabilities Education Improvement Act is complex, and there are other federal disability laws at play: The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

Both the ADA and Section 504 prohibit discrimination on the basis of disability. Virtually all schools are covered by the ADA, and schools that receive federal funding are subject to Section 504 requirements.

As I have explained elsewhere on this blog, the ADA protects individuals with disabilities and their service animals. There is no age limit or age requirement to be eligible under the ADA. So, all individuals who meet the ADA definition of “disability”–regardless of age–are protected under the ADA.

Therefore, if schools are places of public accommodations, schools cannot discriminate against children with disabilities under the ADA. It follows that schools cannot prohibit children with disabilities from bringing their service animals to school. Likewise, public schools that receive federal funding may not discriminate on the basis of disability and must develop a 504 plan for students who meet the definition of “disability” and want to bring a trained service animal to school.

So, does a child with a disability need an IEP in order to bring a service animal to school? I don’t think so. Hopefully, the judge in the Illinois case will see it the same way. If the judge does not, it will be interesting to find out why. I, along with many other disability rights and special education attorneys, impatiently await the judge’s decision.

© 2009, Matthew Stoloff. All rights reserved.

Are IEPs Necessary for Service Animals? originally appeared on Matthew Stoloff's Blog on November 9, 2009.

Related posts:

1. Service Animals in the Schools
2. Carter’s Service Dog Case
3. IEPs for HOH/Deaf Kindergarteners
4. Service Animals in Training on Airplanes
5. The Year of the (Service) Dog

Caption: Photo of kid in a wheelchair with a dog by his side

Not all stories are happy ones. Some school districts blatantly refuse to permit students to bring their service animal to school in violation of federal and state law. To ensure that no service animals are brought to school, some schools will deliberately ignore the law and demand a court order before taking action.  (Some bloggers have shared their perspectives about one case in particular here, there, and over yonder.)

Most recently, there was a news story about an autistic child starting pre-kindergarten special education classes who was met with resistance when the school would not allow the child to bring in his service dog. There’s a terrific and heated debate occurring at the Newsvine regarding whether children with autism should be permitted to bring a service dog to school. This debate clearly demonstrates that service animals for kids with autism  is a tricky issue because it may not be clear if the animal is a “service animal” or a “companion pet.” More on that below.

Fortunately, in many cases, the school administrators who refuse to permit service animals to school will lose because the Americans with Disabilities Act prohibits discrimination on the basis of disability and explicitly provides that service animals are permitted in places of public accommodations. The Americans with Disabilities Act provides that a school is a place of public accommodation. So, in all likelihood, where a school refuses to permit service animals in school, a judge will order the school to revise its policy to permit the service animal. One such case where the judge ordered the school to permit an autistic child’s service dog to school occurred just this summer.

Attorneys for the school districts typically have a few “stock” arguments to persuade judges from permitting children to bring in their service animals:

(1) It is a “safety” issue. We all agree that no one wants other students to be at risk of harm. However, one important requirement of service animals is good temperament. Clearly, if the animal has good temperament, has never been known to bite, has been trained to perform specific tasks over a period of time, and performs those tasks adequately, the “safety” issue is (in all likelihood) moot.

(2) At least one other child or teacher is allergic to the animal (e.g., dog dander). This is a very interesting argument, but I’ve never seen it successfully applied in school settings. This argument, however, has been used in business settings, and, to my knowledge, has always failed. In any event, assuming that there is a student with a documented allergy, there may be work-arounds.

(3) At least one other child or teacher is “terrified” of dogs. Like the allergy argument above, it’s an interesting argument, but again, I’ve not seen it successfully applied in either the educational or business setting.

(4) The school faculty has not been given training how to handle the animal. This is a poor argument that is really designed to delay or discourage service animals from attending school.

(5) The students will be distracted by the service animal. Didn’t any of your teachers have a fish tank in science class? Rabbits? Rodents? When students are exposed to anything interesting for the first time, there’s always going to be excitement. The novelty fades away over time. After a while, no one really notices. In any event, well trained service animals aren’t distracting at all. Furthermore, it’s a good opportunity for students to learn service dog etiquette, i.e., these are service animals, not companion pets, and one should not “pet,” feed, or play with an animal that is working.

(6) The animal is not a service animal, but a companion pet (or a therapy pet). This is a powerful argument if it is true. A service animal is one that has been trained to perform a specific task to mitigate a disability. This is different from a therapy/companion pet. Obviously, the burden would be on the parents and the child to show that the animal has been trained to perform specific tasks to mitigate the child’s disability. While there is no requirement that the animal be “certified,” there must be some evidence demonstrating that the animal does what it has been trained to do. The child’s disability can be described in the attorneys’ briefs and supplemented with medical and/or psychological reports. The service animal’s training and function can also be described in the attorney’s briefs. Additionally, a demonstration of how the service animal helps the child can be given in-person or recorded on video. The animal trainer may also testify on the child’s behalf.

So, what should a parent do when the school district refuses to permit the child to go to school with a service animal? First, engage in open dialogue and try to understand the school’s position. Perhaps a compromise can be worked out. If not, it may be necessary to consult an attorney to determine the next step.

For more information about organizations that train service animals, see Assistance Dogs International, Inc., the International Association of Assistance Dog Partners, or more generally, this website.

© 2009, Matthew Stoloff. All rights reserved.

Service Animals in the Schools originally appeared on Matthew Stoloff's Blog on August 25, 2009.

Related posts:

1. Are IEPs Necessary for Service Animals?
2. Calculating Damages and the Legal Value of Service Animals
3. The Year of the (Service) Dog
4. Service Animals and the Law
5. Badly Behaved “Service Animals”