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After-School Programs & Accommodations

Question:
My 8-year-old son has been kicked out of an after-school program run by a non-profit agency in his elementary school building. He has ADD and some behavioral problems and is on an IEP during his school day. The director of the program said, "He has an innate oddness and intensity about him that frightens the other children." Don't they have to try to include him?

Answer:
I've received quite a few questions similar to this one over the last few weeks, touching on the responsibilities of private programs to provide services to children with disabilities. The same question comes up for children in public school programs when they do not qualify for special education services, but still need accommodations in order to attend school or participate in various school activities. (One person asked how she could help her brother who uses a wheelchair and has been prevented from attending the same high school as she does because of the high school's lack of an elevator or lift.)

Student Rights
This is a good opportunity to talk about the rights students with disabilities enjoy under Section 504 of the Rehabilitation Act of 1973 (which applies to programs that are recipients of federal funds) and the Americans with Disabilities Act. I won't try to be exhaustive here, but will describe some of the basics so you know where to start when this kind of problem comes up. I will speak mostly of Section 504, because its substantive provisions are basically similar to the more recently enacted ADA.

Protection against Discrimination
These laws are intended to protect persons with disabilities against discrimination on the basis of their disabilities. Section 504 defines a person with a "handicap" as any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of having such an impairment; or (iii) is regarded as having such an impairment [34 C.F.R. 104.3 (J)(i)].

The "major life activities" contemplated by this law include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Notice that a person is entitled to protection under the law even if s/he is only regarded as having a disability. This means that even if the person has an impairment that does not limit a major life activity, if the program -- in this case the school or private program -- treats the person as if s/he does have a limiting impairment, s/he is protected. A person is also entitled to the protection of law if their impairment limits a major life activity only because of the attitudes of others toward that disability. Finally, even if a person has no impairment, s/he is still protected if s/he is treated as if s/he has such an impairment.

Students with many different kinds of disabilities have been treated as subject to the protections of Section 504 and the ADA, whether or not their condition also qualifies them for special education and related services under IDEA. Examples of such conditions are: contagious diseases like AIDS or Hepatitis, attention deficit disorder, Tourette syndrome, emotional illness, behavioral disorder, type 1 (juvenile) diabetes, and students who once had IEP's but are no longer special education students (these are viewed as having a "record" of impairment).

Under these guidelines, I would think your son would find protection against discrimination on the ground that he is diagnosed with ADD and a behavioral disorder and also because he is already subject to an IEP in school. Even if that were not so, it appears that the director of the after-school program regards and treats him as having a handicap, describing him as "having an innate oddness and intensity that frightens other children."



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