Cheerleading, OCR and Retaliation: Two Recent OCR Letters

Presented by:

Eric G. Rodriguez

The Girl in College Station

• Student had autism and a speech impairment. She was on the cheerleading squad in middle school, when everyone who wanted to be a cheerleader was a cheerleader.

• It was different in high school. There were tryouts, and not everyone would qualify.

Parent Requests Accommodations

• Parent asked the school to accommodate the disability by “allowing changes to the skills and benchmarks necessary for participation.”

• School held an ARD to consider this. •ARD determined that the disability-related needs involved 1) anxiety; 2) need for redirection; and 3) visual needs.

Some Approved

•ARD decided to provide the student with a video of the tryout routine on the first day of the three-day cheer “clinic.” •Also, special ed teacher would be present throughout the clinic and tryout for support.•Also, parent could attend

the tryout.•But the school refused to

budge on the scoring.

So What Happened?

•Accommodations were provided. • Student did not make the squad. • Parent alleged discrimination

based on disability.

What OCR Looks For

•Accommodations need to be considered on an INDIVIDUAL basis by a GROUP that is KNOWLEDGEABLE about the STUDENT, the EVALUATION DATA, and THE PLACEMENT OPTIONS. • The ARD satisfied that criteria.

What You Don’t Have To Do

• “…equal opportunity does not require changing the nature of selective teams. OCR policy states that a modification would be a FUNDAMENTAL ALTERATION if it would give a particular student with a disability an unfair advantage over others….OCR has determined that eliminating or changing the scoring requirements would, in this instance, constitute such a fundamental alteration.”

Therefore?

• “OCR has determined that the Student, although she did not make the squad, was afforded an equal opportunity to participate in cheerleading through the modifications to the tryout process that were implemented by the ARD committee.“ •No discrimination.

The Parent in New Mexico

• Parent alleged discrimination based on 1) failure to implement IEP; 2) cutting off communication with teachers and staff; 3) banning her from the classroom; 4) filing child abuse charges against her; and 5) filing truancy complaint.

IEP Implementation

• Service log showed that student received social work services on 2-27. • Student was not in school that day, so he could not have received the service.

•Aha!! District must be “falsifying” the data!

OCR’s Response

• It was a simple error by the social worker. Significantly, that’s exactly what the parent was told when she first brought this up. •Moreover, logs showed the

delivery of services during the two months the parent complained of.

Cutting Off Communication

• School’s attorney wrote a letter: “…the volume of email communication….has caused a disruption of the educational process for all children in [the district], the time it takes to review the multiple emails each day is extensive. In addition, your use of profanity and other derogatory comments….is offensive.”

OCR Says….

• “The evidence demonstrates that the complainant routinely emailed or texted District personnel multiple times per day.”

• “The District and its attorney provided for ongoing and timely communication between the complainant and District staff, including access to the student’s teachers although through an identified District contact.”

Barred from the Classroom?

• This happened on one occasion, and was based on the fact that charges of physical abuse by the parent were pending. •OCR says this single incident “may be considered an adverse action.” Therefore, was it CAUSED BY her advocacy for her son?

OCR Says….

• Parent acknowledged that, at the time, she was told that this was due to the allegations of abuse. •District policy authorized principals to “establish individualized restrictions” in order to maintain safety.

• Therefore, it is “unlikely” that there is a causal connection here.

Child Abuse Complaint

•District reported suspected child abuse after an incident at the school that several staff members witnessed.• This is an “adverse action.” • Parent was ultimately cleared. •OCR “assumed” a causal connection with parent’s advocacy. •However….

However….

• “There is extensive information that similarly situated individuals were referred by the District….for suspected physical abuse of a student.” Thus the referral was not a “pretext” for discrimination.

Truancy

• Parent kept child out of school for months. District never filed truancy but made repeated efforts to clarify the situation—are you “home schooling”?• “Documentation from the District reflects that it continued to attempt to ascertain the student’s status and provided ongoing notices of a potential referral for truancy.” •No retaliation.

Lessons Learned

•Do you notice the importance of documentation? • There is no federal right to be a cheerleader.

•Dealing with difficult parents requires patience, restraint and the utmost professionalism.

The Rulings

•Cheerleader: OCR Reference 06141403; College Station ISD; December 22, 2014. •Retaliation: OCR Case No. 08-14-1227; Rio Rancho Public Schools, New Mexico; January 14, 2015.

Contact

Eric G. RodriguezWalsh, Anderson, Gallegos, Green & Treviño, P.C.100 N.E. Loop 410, #900San Antonio, Texas 78216Phone: 210-979-6633

Email: erodriguez@wabsa.com Web: www.WalshAnderson.com

The information in this handout was prepared by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.