This morning, I received an email from the principal. They’ve devised a behavior chart for our daughter. Here’s the problem. The behavior chart clearly spells out the rewards. For the first half of the day, she earns the reward of joining her classmates for recess, and for the second half of the day, she will earn the reward of joining her classmates for free time. The Americans with Disabilities Act is very clear on exclusion.
§ 35.130 General prohibitions against discrimination
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
(b) (1) (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
So, the answer is no. They cannot deny her the enjoyment of recess or free time. No, they cannot make her earn it in a way that it is not required to be earned by everyone else.
Here we are, day one after I revoked their ability to use the special education system as a weapon against our daughter. Already, they are trying to come up with new ways to discriminate against her and deny her basic rights.
It’s going to be a long road ahead of us. It looks like we are already gearing up for the next round of battles. If I cannot rectify this new set of problems, my next step appears to be going to the school board.
104.34 Educational setting
(b) Nonacademic settings. In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in 104.37(a)(2), a recipient shall ensure that handicapped persons participate with nonhandicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question.
As you can see, recess is clearly listed in the law. And, as for the question posed in yesterday’s meeting, the answer is yes we did have a right to request an impartial hearing in regards to her placement.
104.36 Procedural safeguards.
A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.
As you can see, I have a lot of data to study. I need to be prepared for each and every illegal tactic they throw at me. How sad is this? My daughter deserves an education in a setting where she feels safe and welcomed. All children deserve this!