2260.01B - SECTION 504/ADA PARENTS’ PROCEDURAL RIGHTS, INCLUDING DUE PROCESS HEARING
Procedural Information and Rights – Students and Parents
In accordance with various Federal laws (including Section 504, the Americans with Disabilities Act of 1990, as amended (ADA) and Family Educational Rights and Privacy Act (FERPA)), the following procedural safeguards will be provided with respect to decisions or actions regarding the identification, evaluation, educational program or placement, and content of a Section 504 Plan of a student who is or may be disabled under Section 504, but not also disabled under the Individuals with Disabilities in Education Improvement Act (IDEIA):
students with disabilities have the right to take part in, and receive benefits from, public education programs without discrimination because of their disabilities;
parents have the right to be advised of their rights under Section 504;
parents have the right to receive written notice of any decision regarding the identification, evaluation, or educational placement of their child;
parents have the right to have their child receive a free appropriate public education (FAPE) if the child has a physical or mental impairment that substantially limits one or more major life activities;
This includes the right to be educated with students without disabilities to the maximum extent appropriate (i.e., the student’s education will be provided in the general education classroom unless it is demonstrated that education in the general education environment with the use of supplementary aids and services cannot be achieved satisfactorily) and to receive regular or special education and related aids/services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met.
parents have the right to have their child educated in facilities and receive services comparable to those provided to students without disabilities;
parents have the right to have evaluation and educational placement decisions made based upon a variety of informational sources, and by persons who know the student, and are knowledgeable about the evaluation data and placement options;
parents have the right to have their child transported in a non-discriminatory manner;
If the District refers a student for aids, benefits, or services outside the District, the District will ensure that adequate transportation is provided at no greater cost to the parents than if the aids, benefits, or services were provided within the District.
parents have the right to place their child in a private school or alternative educational program;
However, if the District makes a FAPE available to the student that conforms to the requirements of Section 504 and the parents nevertheless choose to place the student elsewhere, the District is not required to pay for the student's education at the private school or alternative program, including costs associated with transportation.
parents have the right to have their child receive an equal opportunity to participate in nonacademic and extracurricular activities offered by the District;
parents have the right to examine all relevant education records, including, but not limited to, those documents related to decisions regarding their child’s identification, evaluation, educational program and placement;
parents have the right to obtain, at their own expense, an independent educational evaluation of their child;
parents have the right to obtain copies of education records at a reasonable cost unless the fee would effectively deny the parents access to the records;
parents have the right to a response from the District to reasonable requests for explanations and interpretations of their child’s education records;
parents have the right to receive all information in the parents’ native language and mode of communication;
parents have the right to periodic re-evaluations and a reevaluation before any significant change in program/service modifications;
parents have the right to request amendment of their child’s education record(s) if there is reasonable cause to believe that information contained in the record(s) is inaccurate, misleading or otherwise in violation of the privacy rights of their child;
If the District refuses to amend the record(s), the parents have the right to request a hearing and/or to attach to the record(s) a statement of why they disagree with the information it contains.
parents have the right to request mediation or an impartial due process hearing related to decisions or actions concerning their child’s identification, evaluation, educational program or placement;
parents have the right to file an internal complaint;
parents have the right to be represented at any point in the process by an attorney;
parents have the right to recover reasonable attorney fees as authorized by law (i.e., if the parents are successful on their due process claim);
parents have the right to be notified of their Section 504 rights:
when evaluations are conducted;
when consent for an evaluation is withheld;
when eligibility is determined;
when a Section 504 Plan is developed; and
before there is significant change in the Section 504 Plan.
Reports and Complaints of Discrimination and Retaliation
Students and District employees are required, and all other members of the District community and Third Parties are encouraged, to promptly report incidents of discrimination and/or retaliation to an administrator, supervisor, or other District official so that the Board may address the conduct. Any teacher, administrator, supervisor, or other District employee or official who receives such a complaint shall file it with the Compliance Officer (hereinafter CO(s)) within two (2) business days. (NOTE: While students are advised to report discrimination/retaliation to administrators, supervisors, or other District officials, the Board recognizes that some students may report discrimination/retaliation to a teacher. When a teacher receives such a report, the teacher must file it with the CO as indicated above.)
Members of the District community, which includes students or Third Parties, who believe they have been discriminated/retaliated against on the basis of disability are entitled to utilize the complaint process set forth in Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability. Initiating a complaint, whether formally or informally, will not adversely affect the Complainant's employment or participation in educational or extra-curricular programs. While there are no time limits for initiating complaints under this policy, individuals should make every effort to file a complaint as soon as possible after the conduct occurs while the facts are known and potential witnesses are available.
A student and/or parent may initiate the investigation and complaint procedures when they believe that a violation, misapplication or misinterpretation of Section 504 has occurred. Additionally, the investigation and complaint procedure may be used for any disagreement with respect to actions regarding the identification, evaluation, or educational program or placement of students who are identified as having a disability or believed to have a disability pursuant to Section 504 and are not eligible under the IDEA, except in the case of disciplinary actions where the provisions of the Student Code of Conduct apply. Use of the investigation and complaint procedure is not a prerequisite to the pursuit of other remedies, including the filing of a complaint with the Office for Civil Rights (hereinafter OCR) or requesting an impartial due process hearing.
If during an investigation of alleged bullying, aggressive behavior and/or harassment in accordance with Policy 5517.01 - Bullying, the Principal believes that the reported misconduct may constitute discrimination based on disability, the Principal shall report the act to one of the COs, who shall investigate the allegation in accordance with Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability. While the CO investigates the allegation, the Principal shall suspend the Policy 5517.01 investigation to await the CO's written report. The CO shall keep the principal informed of the status of the Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability investigation and provide the Principal with a copy of the resulting written report.
The COs will be available during regular school/work hours to discuss concerns related to discrimination/retaliation. COs shall accept reports of discrimination/retaliation directly from any member of the District community or a Third Party and such reports that initially are made to another District employee. Upon receipt of a report of alleged discrimination/retaliation, the CO will contact the Complainant and begin either an informal or formal complaint process (depending on the Complainant's request and the nature of the alleged discrimination/retaliation) or designate a specific individual to conduct such a process.
The CO will provide a copy of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability to the Complainant and the Respondent. In the case of a formal complaint, the CO will prepare recommendations for the District Administrator or oversee the preparation of such recommendations by a designee. All members of the District community must report incidents of discrimination/retaliation that are reported to them to the CO within two (2) business days of learning of the incident/conduct.
Any District employee who directly observes discrimination/retaliation of a student is obligated, in accordance with this policy, to report such observations to one of the CO s within two (2) business days. Additionally, any District employee who observes an act of discrimination/retaliation is expected to intervene to stop the misconduct unless circumstances make such an intervention dangerous, in which case the staff member should immediately notify other District employees and/or local law enforcement officials, as necessary, to stop the misconduct. Thereafter, the CO/designee must contact the Complainant if age eighteen (18) or older or the Complainant's parents/guardians if the student is under the age eighteen (18) within two (2) school days to advise of the Board's intent to investigate the alleged wrongdoing.
Investigation and Complaint Procedures (See Form 2260-E)
Any person who alleges to have been subjected to discrimination or retaliation on the basis of disability may seek resolution of the complaint through the procedures described in Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability. The formal complaint procedures involve an investigation of the individual’s claims of discrimination/retaliation and a process for rendering a decision regarding whether the charges are substantiated.
Due to the sensitivity surrounding complaints of discrimination or retaliation, timelines are flexible for initiating the complaint process; however, individuals are encouraged to file a complaint within thirty (30) calendar days after the conduct occurs. Once the formal complaint process is begun, the investigation will be completed in a timely manner (ordinarily, within fifteen (15) business days of the complaint being received).
The procedures set forth in Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability are not intended to interfere with the rights of any individual to pursue a complaint of discrimination or retaliation with the OCR, the Wisconsin Civil Rights Commission or the Equal Employment Opportunity Commission (EEOC).
Impartial Due Process Hearing
Students and their parents will be advised of their right to request an impartial due process hearing before an Impartial Hearing Officer (IHO) regarding the identification, evaluation or educational placement of persons with disabilities, including the right to participation by the student's parents and representation of counsel, and their right to examine relevant education records.
When a request for a due process hearing is received, the aggrieved party will have the opportunity to receive a hearing conducted by an impartial hearing officer (IHO) (i.e., by a person not employed by the Board, not involved in the education or care of the child, and not having a personal or professional interest that would conflict with his/her objectivity in the hearing).
The District will maintain a list of trained IHOs that may include IDEIA hearing officers, attorneys, and Directors of Special Education outside the District. The District Compliance Officer will appoint an IHO from that list, and the costs of the hearing shall be borne by the District. The appointment of an IHO will be made within fifteen (15) school days after the request for a due process hearing is received.
A party to such a due process hearing shall have:
the right, at his/her/their own cost, to be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;
the right to present evidence, and confront, cross-examine and compel the attendance of witnesses;
the right to a written or electronic verbatim record of such hearing; and
the right to written findings of fact and the reasons for the decision.
The IHO shall conduct the due process hearing within a reasonable period of time (i.e., not to exceed ninety (90) calendar days of the request for such a hearing, unless this time-frame is mutually waived by the parties or is determined by the IHO to be impossible to comply with due to extenuating circumstances).
The IHO will give the parent and/or student written notice of the date, time and place of the hearing. Notice will be given no less than twenty-one (21) calendar days prior to the date of the hearing, unless otherwise agreed to by the parent and/or student. The notice shall include:
a statement of time, place and nature of the hearing;
a statement of the legal authority and jurisdiction under which the hearing is being held;
a reference to the particular section of the statutes and rules involved;
a statement of the availability of relevant records for examination;
a short and plain statement of the matters asserted; and
a statement of the right to be represented by counsel.
The IHO shall conduct the hearing in a manner that will afford all parties a full and fair opportunity to present evidence and to otherwise be heard. The parent and/or student may be represented by another person of his/her choice, including an attorney.
The IHO shall make a full and complete record of the proceedings.
The IHO shall render a decision in writing to the parties within thirty (30) calendar days following the conclusion of the hearing. The decision will be based solely on the testimony and demonstrative evidence presented at the hearing and include a summary of the evidence (i.e., findings of fact) and the reason for the decision.
The notification shall include a statement that either party may appeal the decision.
Appeal of the IHO’s decision may be made to a Federal court of competent jurisdiction.
Retaliation
Retaliation against a person who makes a report or files a complaint alleging harassment/retaliation or participates as a witness in an investigation is prohibited. Neither the Board nor any other person may intimidate, threaten, coerce or interfere with any individual because the person opposed any act or practice made by any Federal or State civil rights law, made a report/formal complaint, testified, assisted or participated, or refused to participate in any manner in an investigation, proceeding, or hearing under those laws and/or Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability, or exercised, enjoyed, aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by those laws and/or this policy.
Retaliation against a person for making a report of discrimination, filing a formal complaint, or participating in an investigation or meeting is a serious violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability that can result in imposition of disciplinary sanctions/consequences and/or other appropriate remedies.
Formal complaints alleging retaliation may be filed according to the internal complaint process set forth in Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability.
The exercise of rights protected under the First Amendment of the United States Constitution does not constitute retaliation prohibited under Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability.
Education and Training
The District Administration shall provide appropriate information to all members of the District community related to the implementation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability and shall provide training for District students and staff where appropriate. All training and information provided regarding the Board's policy and discrimination in general will be age and content appropriate.
Retention of Investigatory Records and Materials
The CO is responsible for overseeing retention of all records that must be maintained pursuant to Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability. All individuals charged with conducting investigations under Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability shall retain all documents, electronically stored information (ESI), and electronic media (as defined in Policy 8315) created and/or received as part of an investigation, which may include but are not limited to:
- all written reports/allegations/complaints/grievances/statements/responses pertaining to an alleged violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability;
- any narratives that memorialize oral reports/allegations/complaints/grievances/statements/responses pertaining to an alleged violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability;
- any documentation that memorializes the actions taken by District personnel or individuals contracted or appointed by the Board to fulfill its responsibilities related to the investigation and the District's response to the alleged violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability;
- written witness statements;
- narratives, notes from, and audio, video, or digital recordings of witness interviews/statements;
- e-mails, texts, and social media posts that directly relate to or constitute evidence pertaining to an alleged violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability (i.e., not after-the-fact commentary about or media coverage of the incident);
- notes and summaries prepared contemporaneously by the investigator in whatever form made (e.g., handwritten, keyed into a computer or tablet, etc.), but not including transitory notes whose content is otherwise memorialized in other documents;
- written disciplinary sanctions issued to students or employees and other documentation that memorializes oral disciplinary sanctions issued to students or employees for violations of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability;
- dated written determinations/reports (including summaries of relevant exculpatory and inculpatory evidence) and other documentation that memorializes oral notifications to the parties concerning the outcome of the investigation, including any consequences imposed as a result of a violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability;
- documentation of any supportive measures offered and/or provided to the Complainant or the Respondent, including no-contact orders issued to both parties, the dates the no-contact orders were issued, and the dates the parties acknowledged receipt of the no-contact orders;
- documentation of all actions taken, both individual and systemic, to stop the discrimination or harassment, prevent its recurrence, eliminate any hostile environment, and remedy its discriminatory effects;
- copies of the Board policy and procedures/guidelines used by the District to conduct the investigation and any documents used by the District at the time of the alleged violation to communicate the Board's expectations to students and staff with respect to the subject of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability (e.g., Student Codes of Conduct and/or Employee Handbooks);
- copies of any documentation that memorializes any formal or informal resolutions to the alleged discrimination or harassment;
- documentation of any training provided to District personnel related to Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability, including but not limited to notification of the prohibitions and expectations of staff set forth in Policy 2260.01 and the role and responsibility of all District personnel involved in enforcing Policy 2260.01, including their duty to report alleged violations of Policy 2260.01, and/or conducting an investigation of an alleged violation of Policy 2260.01 - Section 504/ADA Prohibition Against Discrimination Based on Disability.
Additionally, the CO shall retain copies of any written request for an impartial due process hearing, the IHO’s notices to the parties, the evidence entered in the hearing, any transcript of the hearing, and the IHO’s decision.
The documents, ESI, and electronic media (as defined in Policy 8315) retained may include public records and records exempt from disclosure under Federal (e.g., FERPA, ADA) and/or State law, such as student records and confidential medical records.
The documents, ESI, and electronic media (as defined in Policy 8315) created or received as part of an investigation shall be retained in accordance with Policy 8310, Policy 8315, Policy 8320, and Policy 8330 for not less than three (3) years and longer if required by the District’s records retention schedule.
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