Wheelchairs

It is impermissible for a student to be barred from access to classes and other
activities that regular education peers are provided and which could easily be provided by the school through accommodations, such as a wheelchair or wheelchair accessibility.

For example, a district was required to incur a minimal, nonrecurring expense necessary to make a local school closest to the home of a student who used a wheelchair accessible. The district’s decision to place the student at a middle school which was accessible to wheelchair uses was impermissibly based upon physical accessibility only, rather than the student’s needs. Moreover the expenditure would benefit not only the student but the larger constituency of all wheelchair users as well. San Antonio Indep School Dist., 17 EHLR 1168 (SEA TX 1991).

If your child is being barred from classes, field trips or activities, you should ask for a planning meeting to address that problem and incorporate the solutions into your child’s 504 plan or IEP. It’s helpful to get a letter from your child’s physician indicating the problem and the need for a "reasonable accommodation" for the child.

Use IDEA/504 approach to obtain the wheelchair for the child, having the provision of/training in the use of a wheelchair added to her IEP under functional goals for independence/self-help skills - including the use of the wheelchair with any needed assistance to allow her to participate in extracurricular events and activities.

A common wheelchair accessibility issue occurs when a school tells a family that a child cannot participate in field trips due to wheelchair accessibility problems.

One creative parent resolved the problem by giving the school written notice that she was going to rent a wheelchair for the child and would send them the bill and that she expected that the school would need to arrange to transport the chair and child for the trip. The school saw the error of its ways and took care of the problem.

Several OCR regulations and opinions have dealt with this issue in the past. The right to access to ALL school activities, including extracurricular activities, is an area in which OCR is very supportive of student rights.

Following are citations to 504 regs, followed by citations to some OCR letters and rulings:

The federal regulations governing Section 504 can be found in Volume 34 of the Code of Federal Regulations (“C.F.R.”).

34 C.F.R. § 104.37 sets forth the requirement that public schools provide students with disabilities an equal opportunity as that available to non-disabled students to participate in non-academic and extracurricular services and activities. This section reads as follows:

§ 104.37   Nonacademic services.

 (a) General.

(1)     A recipient to which this subpart applies shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.

 (2)    Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment.

Note that §104.34, which addresses “Educational Settings,” provides, with respect to Nonacademic Settings, as follows:

(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 for 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.

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See Williamstown (MA) Publ. Schs., OCR I, Boston MA, 2003, 39 IDELR 43, in which a parent had complained that the district denied her daughter, who had spastic cerebral palsy, access to a computer lab, the choral group and a field trip. When OCR investigated, it found that the student had been unable to accompany her class on a field trip because there was no plan for transportation.  OCR found that the district did not provide the student with an equal opportunity to participate in extracurricular activities. The case was resolved by the district agreeing to provide, inter alia, appropriate transportation to allow such equal access.

See Chino Valley (CA) Unified School Dist.,OCR, 3/10/2000, addressing a complaint that 12th grade students with disabilities were excluded from a field trip to Medieval Times.  In it letter, OCR states:

"Section 504 prohibits the exclusion of students from participation in any school activity on the basis of disability."

The matter was resolved by the district entering into a written agreement under which it agreed to sponsor a second field trip to Medieval Times, and pay the total cost for all the students who had been previously excluded. Additionally the district agreed that in the future, all eligible students, including those with disabilities, would be invited to attend such field trips. In addition, the District agreed to provide Section 504 disability sensitivity training to all high school administrators.  Based on all these assurances, OCR indicated that it would consider the matter resolved, but that "OCR will monitor the
District's full implementation of the commitments contained in the VRP" [voluntary resolution process].

See Chesterfield (VA) County Public Schools, ICR XI D.C. 2003, 39 IDELR 163, in which OCR approved a settlement agreement after students with mobility impairments complained that field trips to a local movie theater were not accessible. OCR agreed that it was inappropriate for school personnel to carry the students to the second floor so they could see the performance, and approved the district's agreement to request the theater to make the performance wheelchair accessible.

See Rim of the World (CA) Unified Sch Dist., 38 IDELR 101, OCR OX (2002), in which a district avoided a finding of violation of 504 when a teacher told a blind student that he could not participate in a field trip unless accompanied by a family member only because OCR found that this was a "miscommunication" and an "isolated incident" by a teacher who was not the student's normal teacher and because the teacher was not stating school policy - - the student had gone on other field trips without any requirement of a family member coming along.

See Ramirez v D. of Columbia, 32 IDELR 87 (US D.Ct. DC, 2000). In holding that the school had to modify a restroom so the student could maneuver his wheelchair through the doorway, the court ruled that access was required under IDEA and 504. The court noted that regs implementing the ADA and 504 require a program "when viewed in its entirety" to be "readily accessible to individuals with disabilities."  It also referenced Appendix A to 28 CFR §35.150(b)(1), which discusses acceptable vs. unacceptable ways to provide program accessibility. (Carrying the child is not considered an acceptable method for achieving program accessibility,)

See also Evans County (GA) Sch. District, OCR June 30, 1999, in which OCR approved a settlement requiring the district to hire an architect to renovate the entire school system. Among other complaints that were addressed, the student with a mobility impairment had been excluded from a pep rally because he was unable to open the gymnasium doors. With respect to access to the pep rally, the case states:

"With respect to the allegation that the Student was treated differently than students without disabilities when left outside the gym during a pep rally because he was unable to open the gym doors, the District informed OCR that the Complainant notified the Special Education Direction (Director) of the incident. The Director and the classroom teacher apologized to the Student and the Complainant and developed a plan to insure that the incident would not reoccur. . . . As a result of the District's actions, OCR considers the matter resolved."

See also Bad Axe (MI) Pub. Sch. OCR Region V 20 IDELR 819 (7/23/93) finding numerous violations of 504 accessibility requirements, including lack of accessibility to the spectator seating in the football stadium because there were no curb cuts to allow individuals in wheelchairs to reach the seating area.

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