Dr. William Allan Kritsonis teaches in the PhD Program in Educational Leadership at PVAMU - Member of the Texas A&M University System.

1. American Disability ActEquity in Education for the Disabled William Allan Kritsonis, PhD

2. “It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . three generations of imbeciles are enough." Oliver Wendell Holmes Buck v. Bell, 274 U.S. 200 (1927), was the United States Supreme Court ruling that upheld a statute instituting compulsory sterilization of mentally retarded "for the protection and health of the state." It was largely seen as an endorsement of negative eugenics—the attempt to improve the human race by eliminating "defectives" from the gene pool.

3. Discriminatory Law Against The Disabled “No person who was diseased, maimed, mutilated, or in any way deformed so as to be unsightly or disgust object or improper person to be allowed in or in the public places in in this city shall therein or thereon expose himself to public view, under a penalty of not less than one dollar nor more than an fifty dollars for each offense.” (Chicago Law Repealed in 1974/Tennessee v. Lane, 2003 Brief for the United States, p. 19)

4. Beattie vs. Board of Education In this case, a student had a disability that caused him to drool, have involuntary facial contortions, and have speech problems. Although his disabilities were strictly physical, and his intellectual ability was not affected he was expelled from school because “ this condition nauseated the teachers and other students. This case went before the Wisconsin supreme court; court ruled that school officials could indeed exclude students with disabilities. and the court .

6. Denise Karuth testified that the New York State Commission for the Blind would not sponsor her for a masters degree in rehabilitation counseling because "the State would not hire blind rehabilitation counselors."(6)

7. A professor of veterinary medicine at a state university was fired because he had AIDS.(7)

9. Historical Origins of ADA Lead To… Strong desire of disabled individuals to fully participate in society giving rise to

10. Two Landmark Cases Pennsylvania Association for Retarded Children ( PARC) vs. Commonwealth of Pennsylvania Argued that students with mental retardation in Pennsylvania were Not receiving a publicly supported education. Court ruled that children in Pennsylvania between the ages of 6 and 21, who had mental retardation, must be provided a free public education. It was also determined that these children could benefit from being enrolled in a program that was most similar to the programs developed for their peers without disabilities Mills v. Board of Education Suit was brought forth by the parents and guardians of children who represented a wide range of disabilities in Washington DC. Plaintiffs argued that their children were excluded form school without due process of law (14th Adm.) Court ruled that all children with disabilities in the District f Columbia must be provided a publicly supported education. Case also responsible for gaining the right to due process safeguard for children with disabilities. Safe Guards include: Right to a hearing The right to appeal The right to have access to records Written notice requirements

11. Important Laws Protecting Individuals with Disabilities Education for All Handicapped Children Act of 1974 later changed to IDEA (Individuals with Disability Education Act) Rehabilitation Act of 1973 Section: 504 was passed as a civil rights law American Disability Act 1990

13. Under IDEA students were to be placed in the least restrictive environment, which evolved into a "mainstreaming" philosophy.

14. The reform movement from "mainstreaming" to "inclusion" that began in the 1980s refocused attention on how students with disabilities were faring in the regular classroom.

16. Purpose of 504 The purpose of Section 504 is to protect individuals with disabilities from discrimination for reasons related to their disabilities. ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law.

17. Three Categories Protected under 504 Any person who has a physical or mental impairment that significantly limits one or more of his or her life activities Any person who has a record of such an impairment Any person who is regarded as having such an impairment

18. Employment Landmark Case Arline v. School Board of Nassau County (1987) Under 504 of Rehabilitation Act- an elementary school teacher was discharged due to continued recurrence of tuberculosis. The teacher brought suit under 504, but US district Court dismissed her claims. On appeal, the 11th Circuit court of appeals reversed the decision and held that persons with contagious diseases fall within 504 coverage. School Board appealed to the US Supreme Court. Supreme Court found that teacher was a person with a disability because tuberculosis affected the respiratory system and ability to work. Case was remanded to the district court to determine if the teacher was “otherwise qualified” if reasonable accommodation apply. Court relied on reasonable medical judgments, teacher reinstated

19. 504 Subparts Subpart A—General Provisions Subpart B—Employment Practices Subpart C—Physical Accessibility Subpart F—Health, Welfare, and Social Services Subpart G—Procedures Subpart D— Preschool, Elementary, and Secondary Education Subpart E— Postsecondary Education

20. Section 504 The student has a physical or mental impairment that substantially limits one or more of a person’s major life activities. The impairment must impact the student’s education.

22. Grievance Procedure

24. Annual Notice to Parents/Students

26. Staff Training

27. Section 504 Grievance Procedures Management

28. Nondiscriminatory Practices in Classrooms

29. Referral/Identification/Evaluation

30. Parent Involvement and Encouragement

31. Program Modifications and Accommodations

32. Curricular AdaptationsSchool Principals and Certified and Classified Staff

34. Signed into law by President George Bush

35. Comprehensive legislation

36. Protecting the rights of individuals with disabilities

38. States have historically denied persons with disabilities the right to live in the community

40. States have denied persons with disabilities access to court

41. States have denied persons with disabilities the right to travel

43. The Mandate The basic mandate of the ADA is that: “no qualified individual with a disability shall be excluded from participation in, or denied access to, programs or activities; denied benefits or services; or be subjected to discrimination by any public entity.”

44. Threshold ADA Requirement for School Districts Every school in the Nation receiving federal financial assistance directly or indirectly must adhere to the Rehabilitation Act

45. Who is Covered by ADA? The ADA defines an individual as disabled if the person: 1. has a physical or mental impairment that substantially limits one or more major life activities; (such as walking, hearing, seeing, speaking and breathing) 2. has a record of such impairment; (such as recovered cancer patients or those who are disfigured to such an extent that they having a substantially limiting impairment) 3. is regarded as having such impairment. 42 USC§ 121l2 (2)

46. Definition Issues Bragdon v. Abbott, 118 S. Ct. 2196 (1998) Plaintiff demonstrated that her HIV status, asymptomatic had substantially limited her in caring out major life function of reproduction. Supreme Court decided that reproduction is a major life activity, and that the plaintiff in the case was protected as substantially limited in that major life activity. Note: Court did not decide that all individuals HIV positive, but asymptomatic, are covered nor did it address whether individuals who are HIV positive are protected under the “regarded as” prong of the definition.

48. Limited to recipients of federal grants ( funding)

49. Do not all states to be sued

50. Does not limit use of pre-employment medical screening or questions

51. Does prohibit discrimination on the basis of association with a disabled person

52. Definition “disability”

53. Covers all public entities

54. Specifically abrogates the 11th Amendment Immunity of states

55. Limits pre-employment medical screening or questions

57. ADA Title II Title II: Public Services- prohibits discrimination in services, programs and activities provided by state and local governments and any of their instrumentalities regardless of whether the public entity receives federal financial assistance . All public school are covered by Title II. Applies to public transportation but not school transportation 42 USC 121411

60. DC Judge tells School to Accommodate! Washington Post October, 1999 “Judge Tells School to Fix Bathrooms, 9-year old Wheelchair User Had to Drag Himself to Toilet” –story of a boy at DC elementary school who, because of structural inaccessibility, was forced to crawl to the bathroom for almost two years. (Strauss, V. & Wilgoren, D., 1999)

61. ADA Title IV Title IV-Telecommunications- applies specifically to telecommunications provided by common carriers, including wire, radio, television and telephone. Included installation and use of TDD devices for wire, radio, telephone and closed-captioning services for television.

63. Amends the Rehabilitation Act to exclude from the definition of “handicapped individual” someone who is a current user of illegal drugs. Recovering addict would be entitled to protection under ether Rehabilitation Act or ADA

66. Tuberculosis

67. Arthritis

68. Asthma

69. Allergies

70. Diabetes

71. Obesity

72. Epilepsy

73. Heart Disease

74. Chronic Fatigue

75. Orthopedic

76. Special Education—Qualified Students

77. Conduct Disorder

78. Temporary Disability

79. ADD/ADHD

80. *Drug and Alcohol

81. Migraine Headache

82. Tourette Syndrome

83. TBI—Traumatic Brain Injury

84. Cerebral Palsy

85. Cancer

86. Multiple Sclerosis

88. Eligibility Points of Clarification Every person eligible for Section 504 will not necessarily be eligible for special education. Every person eligible for special education is also protected under Section 504.

89. Should Parents be involved in 504/ADA Process and Procedure? Absolutely, parents should be included in the 504/ADA process whenever possible.

90. Documentation It is important to document evaluation results, eligibility determination, services, and placement issues regarding each student. DOCUMENT-DOCUMENT-DOCUMENT!

91. Who can refer a student for 504/ADA? Referrals are accepted from parents, professional staff, students, and/or other staff members. The problem(s) and previous remedies are considered and reviewed.

92. Evaluation The school must evaluate all students with disabilities before making an initial placement or any significant change in placement.

93. Notification The school notifies the parents or guardians, in writing, of the schools’ reason and intent to conduct an evaluation. The notice should include a description of the evaluation and procedural safeguards. Parental consent would be considered best practice for all Section 504/ADA evaluations.

94. Section 504/ADA Committee Meeting A best practice is to use the Student Assistance Team as the Section 504/ADA Committee. Typical members would include the following: The committee will study and analyze the evaluation data to determine if the student has a mental or physical disability that substantially limits a major life activity and influences the student’s educational program.

95. Eligibility and Accommodations/Services If the student is eligible under Section 504/ADA, the team determines accommodations and/or services that will enable the student to benefit from his/her education. This can be documented on an individual Section 504 plan.

96. Services The following factors are considered by a team knowledgeable about the student and the disability: Evaluation results Section 504/ADA eligibility The student’s unmet needs Services and/or accommodations based on eligibility Possible staff professional development Least Restrictive Environment (LRE)

97. Implementation The school staff makes the necessary accommodations to allow for the student’s disability. Parents should be consulted and given opportunities for input. The accommodations and/or services are then implemented.

98. Comparison Type Section 504/ADA—Civil Rights Law Special Education— Individuals with Disabilities Education Act

99. Free Appropriate Public Education (FAPE) Section 504/ADA Requires FAPE be provided to only those protected students who, because of a disability, need general education accommodations, or special education and related services. Defines FAPE as general or special education and related aids and services, to meet the needs of the individual student.

100. Comparison Section 504/ADA—General education accommodations and/or special education and/or related services. Special Education—Must be eligible and need special education; then related services can be added if they are necessary for the student to benefit from special education.

101. Common Accommodations Provide a structured learning environment. Repeat/simplify instructions regarding class assignments and homework. Supplement verbal instructions with visual ones. Use behavior management techniques. Adjust class schedules. Modify test delivery. Use tape recorders, CAI, and other audiovisual equipment. Select modified textbooks or workbooks. Tailor homework assignments. Tutor one-on-one.

102. Common Accommodations Use classroom aides and note takers. Modify nonacademic times (lunchroom, recess) and physical education. Change student seating. Change instructional pace. Change instructional methods. Change instructional materials. Provide peer tutoring. Implement behavioral/academic contracts. Use positive reinforcements (rewards). Use negative consequences (punishments). Use supplementary materials.

104. Policies & Practices

105. Communication Policies

107. Fundamental Alteration Decisions

108. Accessibility to public Meetings

109. Employment Practices

110. Building & Construction Policies

111. Provide ADA Training to Employees

113. References Blanck, P., Hill, E., Siegal, C., Waterstone, M., (2004). Disability civil rights law and policy. West, St. Paul, MN. Kemerer, F., Walsh, J. , ( 2000) The educator’s guide to Texas school law 5thed., University of Texas Press, Austin ,TX. Rothstein, L., Rothstien, J., (2006). Disabilities and the law 2nd ed. West Group, Danvers, MA Americans With Disabilities Act 42 USC§ 12101 et seq. (1990) Individuals With Disabilities in Education Act 20 USCA§§1400-146129 (1973) Rehabilitation Act § 504 (1973) Strauss, V. , Wilgoren , E. (1999) October 20). Judge tells school to fix bathrooms, 9-year old wheelchair user had to drag himself to toilet. The Washington Post.

114. Cases Arline v. School Board of Nassau County (1987) US Court of Appeals Eleventh Circuit F. (1989) Beattie v. Board of Education 172 N. W. 153 (1919) Bragdon v. Abbott 163 3d 87 ( 1st Cir. 1998) Brown v. Board of Education Topeka 347 US 458 (1954) Buck v. Bell 274 US 200 (1927) Chalk v. United States District Court 832 F. 2d 1158 (9th Cir. 1987) Mills v Board of Education of District of Columbia 348 F. Supp 866 (1972) Pennsylvania Association of Retarded Children v. Commonwealth Of Pennsylvania., 343 F. supp 279 (1972) School Board v. Arline 480 U. S. 273 (1987)

115. The Americans with Disabilities Act has mandated that public schools become public. The Ivory Tower of Academia has been toppled and replaced with open and accessible institutions of learning opportunities for all children and adults including the disabled individual.