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Ask the Attorney with John Brower, J.D.

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 web site.

John Brower, JD
Education Law Center, PLLC

Education Law Center, PLLC · 810-227-9850 · 

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