UNITED STATES DEPARTMENT OF EDUCATION GUAM 915 AVE, SUITE 3310 HAWAII SEATTLE, WA 98174-1099 IDAHO MONTANA NEVADA NORTHERN MARIANA OREGON WASHINGTON July 20, 2018 Ms. Elizabeth Polay - Wiscarson Law 3330 NW Yeon Avenue, Suite 240 Portland, Oregon 97210 Re: Bieaverton School District 48] OCR Reference No. 10181146 Dear Ms. Polay: The US. Department of Education (Department), Of?ce for Civil Rights (OCR) has completed its evaluation of the complaint of disability discrimination that you ?led against the Beaverton School District 48] (District). In the complaint, you alleged that the District discriminates against the Student, Lewis Toon, a special-education student who attends the Academic and Communication Enhancement (ACE) program, based on disability by: failing to afford him equal access to certain facilities that are afforded to other students, speci?cally a gym, library, cafeteria, classrooms with running water, and outdoor areas for physical activity; 2. failing to afford him an equal opportunity to participate in ?eld trips and outings that are afforded to other students; and failing to afford him equal access to classrooms with windows and, natural light, a laundry room, and a kitchen. OCR has determined that it will investigate Allegations Nos. 1 and 2. For the reasons explained below, OCR has determined that it does not have authority to investigate Allegation Nos. and is dismissing these allegations effective today. determinations are based upon the information contained in your complaint and supporting materials, and from your e-mail correspondence and telephone interview with OCR. Page 2 - OCR Reference No. 10181146 OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), and their implementing regulations. Section 504 prohibits disability discrimination in programs and activities that receive'federal ?nancial assistance, and Title II prohibits disability discrimination by public entities. The District receives federal ?nancial assistance from this Department and is a public entity. Therefore, the District is subject to these federal civil rights laws. Under Case Processing Manual (CPM), OCR is required to dismiss a complaint allegation when the allegation fails to state a violation of one of the laws OCR enforces, - and when, based on a review of the information provided by the complainant, OCR is unable'to' conclude that the allegation establishes a violation of One of the laws OCR enforces. Under the Section 504 and Title II regulations, a school district is prohibited from affording individuals with disabilities an opportunity to participate in or bene?t from an aid, bene?t, or service that is not equal to that afforded to others on the basis of disability. With respect to allegation No. you alleged that the District discriminates against the Student, based on disability, by failing to afford him equal access to classrooms with windows and natural light, which are building features that you assert are provided to other students. According to the complaint information, the Student has been placed in the District?s ACE program, which serves secondary-level students whose individualized education programs (IEPs) demonstrate a need for signi?cant behavior support. All of the students placed in the ACE program are students with disabilities. The information you and the Parent provided indicates that the ACE program is located at a building complex called the Capital Center, which was originally designed as of?ce space and is located in an industrial park. Due to its older design, most of the Capital Center has windows generally on parts of the perimeter of the complex. Several other District school programs are also located at the Capital Center, such ?as the Health and Science School, the School of Science and Technology, the Community Transition Program, and the - Bridges Academy. These school programs serve students with and without disabilities. You and the Parent stated that the ACE program is located in a cluster of three classrooms inside the Capital Center. You stated these ACE program classrooms do not have windows or natural light. You and the Parent told OCR that you did not know whether any of the other schools? classrooms at the Capitol Center have windows or natural light. OCR has reviewed drawings of the Capital Center from the District?s website and that you provided, which indicate that many of the interior classrooms in the Capitol Center do not appear to have windows and natural light, including classrooms for Page 3 OCR Reference No. 10181146 the Health and Science School, the School of Science and Technology, and the Community Transition Program, a special education program that provides transition services to students with disabilities. Moreover, review of other high schools at the District shows that at least one othe1 high school, Aloha High School, is located in an older building, which like the Capitol Cente1, has windows generally on parts of the pe11mete1 of the building and appears to have classrooms without windows or natural light. Because the information you have provided fails to state a potential violation of Section 504 or Title II, OCR is dismissing Allegation No. Regarding Allegation No. you alleged that the District discriminates against the Student based on disability by failing to provide him access to a laundry room, which is a facility that you allege is afforded to other students with disabilities in other special education programs, such as the Community Transition Program. You have not provided information suggesting'that general education students have access to a laundry room. According to the Student?s special education records that were submitted to OCR, the Student receives independent living skills instruction under his IEP. The Student?s most recent IEPs from 2018 do not include laundry routine instruction as part of his independent living skills. Because the information you provided does not indicate that a laundry room is the type of facility that is provided to all students, and because the information indicates that a laundry room is notneeded in order for the Student to receive his instruction under his current IEP, OCR is unable to conclude that Allegation No. 3(b) states a potential violation of Section 504 or Title II Ther',ef01e OCR 1s required to dismiss the allegation. Regarding Allegation No. under the Section 504 and Title II regulations, a school district is prohibited from providing an individual with a disability with different aids, bene?ts, or services than are provided to others unless such action is necessary to provide the individual with a disability with aids, bene?ts, or services that are as effective as those provided to others. You alleged that the District discriminates againstt t11e Student based en d1sab111t by failing to provide him access to a kitchen, which IS a facility that you allege' IS afforded to othe1 students with disabilities 1n other special education programs Similar to Allegation No. you have not provided information suggesting that general education students have access to a kitchen. According to the Student?s special education records that were provided to OCR, the Student has been removed 100% of the day from general education and placed in the ACE. program on account of his disability. The Student?s April 9, 2018, IEP and his prior IEPs indicate that the Student needs access to cooking facilities because he prepares snacks heating a frozen pizza) as part of his'independent living skills instruction. The complaint information indicates that the Student has been given access to a lunchroom with a toaster oven, microwave, and refrigerator but does not have access Page 4 - OCR Reference No. 10181146 to the kitchen in the Capital Center. You stated that the Capital Center kitchen is made available to the Community Transition Program, another special education program. You also stated that special education students at other District high schools have access to kitchens at their schools. These other special education students have less severe behavioral needs than the Student and his special education peers placed in the ACE program. Because the information you provided indicates that the District has provided the Student with different kitchen facilities than is provided?to other students with disabilities in order to meet his individual disability needs, OCR is unable to conclude Allegation No. 3(c) states a potential violation of Section 504 or Title 11. Therefore OCR is required to dismiss the allegation. As stated earlier, OCR is proceeding with an investigation of Allegation Nos. 1-2 because they raise a possible violation of Section 504 and/or Title II. decision to open an investigation does not re?ect an opinion by OCR regarding the merits of the allegations or the District?s compliance with federal civil rights laws. OCR will address your cOrnplaint allegations in a fair and impartial manner consistent with the regulatory requirements and in accordance with CPM. A copy of the CPM can be found at Complaint allegations may be resolved in a variety of ways, including: where appropriate, a resolution between you and the District that is - facilitated by OCR (?Facilitated Resolution Between the Parties?); 0 a Voluntary written agreement in which the District agrees to take remedial actions that OCR determines fully resolve the allegations consistent with applicable legal standards; or - an investigation by OCR, resulting in ?ndings and a determination as to whether the District is in compliance with the applicable legal standards and, in the event noncompliance is found, a written agreement between OCR'and the District in Which the District commits to take specific steps to comply with applicable laws and regulations. This letter serves as ?nal agency determination with respect to Allegations Nos. and there is no right of appeal. This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such. formal policy statements are approved by a duly authorized OCR official and made available to the public. You may have the right to file a private suit in federal court whether or not OCR finds a violation. Page 5 OCR Reference No. 10181146 OCR will contact the District soon to discuss the complaint and complaint resolution process. If you have any questions about this letter, you may contact Jennifer Kuenzli, equal opportunity specialist, at (206) 607-1675 or at jennifer.kuenzli@ed.gov. Sincerely, Sarah Dunne Chief Attorney