TF vs Fox Chapel School District

[daisy madness]

This is amazing stuff!  I hope to have more time to read it later.  In briefly skimming it, I found the use of the phrase "deliberate indifference" to be huge.  It seems to me that schools have found a loophole to keep them out of trouble with OCR by saying that they considered an accommodation but disagree with the parents and/or the child's doctor that it is necessary. 

I'm going to keep that phrase in my pocket for possible use at a later time.

[twinturbo]

  It was tweeted a couple of times but worth repeating, underscoring.

p. 56, 57 Appeal brief

deliberate indifference wrt knowing of but failing to address disabled student's individual needs resulting in violation of Section 504.

Under the deliberate indifference standard, intentional discrimination can be inferred from a defendant school district's "(1) knowledge that a federally protected right is substantially likely to be violated...and (2) a failure to act despite that knowledge."

Deliberate indifference does not mean that a school district acted with "personal ill will or animosity toward the disabled person." "It does, however, require a 'deliberate choice, rather than negligence or bureaucratic inaction.'

For instance, a school district's deliberate choice to decline to modify its conduct after learning what constitutes appropriate accommodations constitutes a deliberate choice...violating Section 504 with deliberate indifference where it "simply ignores the needs of [disabled] students.

[twinturbo]

It must be pointed out, however applicaple the principle is, that deliberate indifference is part of civil constitutional law and this case is in federal court (not under OCR authority or investigation), and the standard does require some proof of intent. Proof of intent for deliberate indifference requires showing the court in descriptive terms the exact conduct or behavior by the school district that would prove they were aware of, but did not take the necessary actions needed to resolve the issue. That is still open to interpretation so obvious thing there is keeping good evidence that shows (1) school had knowledge (2) conduct or lack of action resulted in no remedy or prevention of further harm, etc.

Citing this directly with OCR may be immediately dismissed due to technicality because it isn't really what they preside over or regulate, at least not in that form. How I will use it is in the manner and substance of what I document along the way, gathering in writing all events, persons, details to show distinct proof school had facts clearly in hand to make a 'deliberate choice' (see appeal) to not act even when presented with information that not acting would result in a violation, danger. In order to meet my burden of proof for intent that would meet the standard of deliberate indifference should it go to civil suit I would want to case build from the very start with that possible eventuality.

Also important is the structural change of damages from compensatory to equivalent.

It's imperative to remember this is not a case before OCR at the moment it is federal court civil suit. Important distinction, and one that allows FARE to file an amicus brief because court (as opposed to OCR) allows for those statements to be heard and considered.

The outcome will affect us all, and it will set precedent.

[twinturbo]

To illustrate how important this case is to all of us consider this 2013 presentation for a school board association from a private law firm. Imagine how much the school paid for this ON TAX DOLLARS meant for education to form strategies on how to withhold accommodations for qualified students with disabilities. Here's the opening paragraph.

An increasing number of children report having food allergies. Parents are becoming more demanding in their "requests" for accommodations for food allergies. It is no longer uncommon for parents to demand that life threatening allergens be banned from the entire school or that one-to-one aide be assigned to a student with a life threatening food allergy. Given the prevalence of severe allergies among children, it is likely that most school board will face issue related to allergies at some point. This presentation addresses the legal issues surrounding the accommodation of allergies and focuses on the question: Just how far must a school go to accommodate a student's allergies?

http://www.mnmsba.org/Portals/0/PDFs/LC2014Handouts/Thursday/2014QRAccomodatingStudentAllergy.pdf

Holding. The court held that the district did not violate Section 504. The court found that the district had attempted to work with T.F. and his parents for several months and had proposed four (4) separate 504 Plans. Citing a recent Third Circuit case, the court held that "to offer an 'appropriate education' under the Rehabilitation Act, a school district must reasonable accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access to education benefits." The district took "reasonable steps to accommodate T.F.'s disabilities and include him in all class activities; it was not required to grant the specific accommodations requested by Parents or otherwise make substantial modifications to the programs that were used for all other students."

Ms. Maloney sidesteps the initial hearing decision that found the district did engage in retaliatory actions, and that the regulations in Dept of Ed are contrary to the federal court's singular interpretation with regard to the reasonable standard.

#WeAreTF. Believe it.

[Macabre]

[ajasfolks2]

"deliberate indifference"

is not as strong as

"willful negligence"

or our other

"atmosphere conducive to a fatality"

BUT


(LOL, big "but")


these schools are on a slippery slope.

And I'm liking where this all may be going.

[ajasfolks2]

Mon dieu, so many of us have fought the good fight and pushed for meaningful 504s with schools that have been FAR MORE than

deliberately indifferent.


What a euphemism!!  Hey, OCR and Federal Courts,

LIVE OUR LIVES FOR JUST ONE SCHOOL YEAR!!!!!!!!

[Macabre]

The link has been updated!

https://www.dropbox.com/s/z9dvfwp1mwzy8pb/Brief2014.pdf

[twinturbo]

http://ohmahdeehness.wordpress.com/2014/05/10/a-brief-in-semi-brief-understanding-the-amicus-brief-of-fare-and-copaa-in-t-f-vs-fox-chapel-area-school-district/


I spoke with her on twitter (briefly  ) and she seemed so nice.

Bumping this. Very important read to contextualize the process. Very.

Can we get a RT of her blog post? https://twitter.com/woodrumlaw/status/465341810747772929

[twinturbo]

Should I experience a lucid moment an inquisitive email or two to OCR may go in. In another recent twist I might be able to attend the FARE conference day w/Pete Wright and Jim Long (retired OCR). All due respect to private attorneys, especially when they are stakeholders, but enforcement is a different animal than interpretation. It's time to start a line of inquiry with OCR and maybe even DOJ. Flex that dysfunctional civilian military brat muscle that permeates my being.

[ajasfolks2]

The link has been updated!

https://www.dropbox.com/s/z9dvfwp1mwzy8pb/Brief2014.pdf

Glad to see as I wasn't sure who I needed to ask for permission to place a copy in our FAS Dropbox . . .

[ajasfolks2]

Just putting link in here to the other related thread:

Council of School Attorneys SpEd Webinar

[ajasfolks2]

Fox Chapel, more -- from June 30. 2014

Appeal Reply Brief, Final

https://www.dropbox.com/s/gyze09lp9l50f35/TFAppealReplyBriefFINAL.pdf

[ajasfolks2]

Wrightslaw on this topic:
3rd Circuit Will Hear Food Allergy Discrimination Case
06/05/14
by Wrightslaw -

http://www.wrightslaw.com/blog/?p=11506&fb_action_ids=10203927942700575&fb_action_types=og.likes

[CMdeux]

Thanks for updating this, Ajas!