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Question:
My question is in regards to a high
school special needs child. My child would love to take choir at the
high school she attends. However, whenever we ask about the class,
they say it is a "very competitive" class. I take this as code for
really meaning that she would bring down the level of their success.
Do I have a right to insist she belong? Finding classes to help her
mainstream outside of the special education classroom is getting
exceedingly difficult.
Answer:
As is so often the case, to answer one
question requires the answer to a number of other questions. The
obvious question here is one of discrimination. That is, is your child
being prevented from taking this class due to improper and illegal
reasons?
First, the anti-discrimination laws of §504 and the Americans with
Disabilities Act (ADA) do not apply unless the child has been found to
be a disabled student under §504 or a special education student under
IDEA. If not, then the first step is to write a letter to the
district’s special education director telling him or her the reasons
that you suspect your child may be disabled and request that “ a full
evaluation be done for all suspected disabilities”. At least that way
if the district refuses to evaluate, and you do not agree you have
some legal rights (see earlier postings for discussion of §504 and
IDEA eligibility).
If a child is already eligible under §504 or IDEA (as would be the
case if they are in “special education classes”, then the next
question is whether the student “is otherwise qualified” to
participate in the class, and can the child participate if reasonable
accommodations were provided. For example, a student confined to a
wheelchair may not be “otherwise” qualified to participate in
football, but may be fully qualified to play a band instrument.
Similarly, if it is a class limited to band or choir members, and not
all students (independent of a disability) have sufficient skills to
be allowed to participate in the class, then just a choir director can
refuse to accept non-disabled students who cannot sing, he or she can
reject a disabled student who cannot sing. On the other hand, if the
class is open to all students who have an interest in receiving some
formal instruction in voice, independent of how well they can sing,
then in my opinion the district and choir director would be illegally
discriminating against the §504/IDEA protected student by refusing
them an equal opportunity to participate.
The easy way to resolve this is to find out the exact details of this
class. Are all general education students able to take the class? Is
there is singing test? With reasonable accommodations, could the child
participate (e.g. large type music, etc.)? With that information, you
should have a better sense if your disabled child is being
discriminated against. If so, I would suggest you first approach the
district’s §504 Coordinator with your claim. If you are not satisfied,
then you can file a complaint with the Cleveland Office for Civil
Rights (OCR). Details on how to reach them are on the
www.edlawcenter.com
web site.
John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com
Education Law Center, PLLC · 810-227-9850
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www.michedlawcenter.com
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