COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Needham Public Schools BSEA No. 04-3810
RULING ON CROSS MOTIONS FOR SUMMARY DECISION
This decision is issued pursuant to Section 504 of the Rehabilitation Act of 1974, 29 USC Sec. 794; the Massachusetts special education statute, G.L. c. 71B, the Massachusetts Administrative Procedures Act, G.L. c. 30A, and regulations promulgated under those statutes.
On March 18, 2004, Parents filed a request for hearing with the Bureau of Special Education Appeals (BSEA) contesting the Needham Public Schools’ (Needham’s or School’s) decision not to provide Student with extended time for testing as an accommodation under Section 504 of the Rehabilitation Act as well the underlying determination by Needham that Student does not have a disability as defined by Section 504. Parents requested the BSEA to find that Student has a disability within the meaning of Section 504 and to direct Needham to provide extra time for testing, or other appropriate accommodations.
During a pre-hearing telephone conference, the parties represented that there were no disputes of material fact. The parties agreed to have the BSEA issue a summary decision based on application of the relevant law to the undisputed facts presented in the parties written submissions. Accordingly, on April 21 and 22, 2004, respectively, the Parents and School each filed Motions for Summary Decision together with documentary evidence and supporting memoranda. On April 30, 2004, Needham filed a Rebuttal to Student’s Motion for Summary Decision , and Parents filed a Reply Memorandum in Support of Her Motion for Summary Disposition . On May 4, 2004, Needham filed a memorandum entitled Further Support of its Own Motion for Summary Decision and Further Rebuttal of [Student’s] Motion . On May 6, 2004 Student filed a Sur-Reply Memorandum , and the record closed on that day.1
The documentary record consists of Parents’ exhibits A through C (designated here as P-A through P-C), and Needham’s (or School’s) exhibits A through O (designated S-A through S-0).
ISSUE PRESENTED
Do Student’s undisputed diagnoses of mild dyscalculia and weaknesses in executive functioning and processing speed make her a person with a disability within the meaning of Section 504 of the Rehabilitation Act of 1974, who thereby is entitled to accommodation from the Needham Public Schools? If so, is extended time for in-class tests an appropriate accommodation?
POSITIONS OF THE PARTIES
Parents’ Position
Student’s dyscalculia and executive functioning weaknesses impair her ability to access the Needham High School (NHS) curriculum because they interfere with her ability to complete and/or pass in-class tests, preventing her from accurately demonstrating her knowledge even though she has studied and learned the material. Student compensates for her documented learning disability by spending an inordinate amount of time on homework and extra credit assignments to make up for poor test grades. Student also enrolls in the “Standard” rather than “Honors” divisions of some courses, but should not have to do so in lieu of accommodation by the School. Finally, Needham has essentially conceded that Student requires extended time on tests as an accommodation because Student’s guidance counselor wrote a letter in support of Student’s receiving extra time on the PSAT and SAT, and because some teachers provide “de facto” accommodations.
Position of School
Student does not meet the legal definition of “person with a disability” within the meaning of Section 504 of the Rehabilitation Act because her impairments to not substantially interfere with a major life activity. Moreover, in making this determination, Needham acted reasonably, consistently with relevant case law, and in compliance with the procedural requirements of Section 504.
FACTS
The following facts are not in dispute:
1. Student is fifteen years old and currently a sophomore at Needham High School (NHS). Student has attended the Needham Public Schools since Kindergarten. Student has always been a regular education student. She has never been referred for a Chapter 766 evaluation, and, prior to the March 2004 evaluation that is the subject of this appeal, has never been referred for accommodations under Section 504. Student has never repeated a grade. According to the records submitted by the parties, Student never has had attendance problems and never has been suspended. (S-A, B, C)
2. Student has been involved in extracurricular activities including gymnastics, dramatic arts, and dance. From kindergarten until the 2003-04 school year, Student was involved in competitive gymnastics and has been a nationally-ranked competitive gymnast. Student discontinued competitive gymnastics after summer 2003 because it was interfering with school, but now is a member of the NHS competitive and performing dance teams, and also attends private dance classes. Student hopes to go to college and major in dance. (P-A)
3. The documentary record shows that Student made effective progress in regular education throughout elementary school. An end-of-year kindergarten progress report for the 1993-94 school year describes Student as a “sweet and caring youngster” who did well socially and behaviorally, took pride in her accomplishments and was always willing to try new activities and challenges. Academic progress appeared to be appropriate. Student “spen[t] a great deal of time on her projects, adding many details,” and “almost always work[ed] carefully and deliberately…” In first grade (SY 1994-95) Student “consistently” (the highest ranking) or “often” (second highest) performed all targeted personal or social skills, and, by the last term, got the middle (“Steady progress”) or highest (“demonstrated strength”) possible grade in all academics. Teacher comments describe Student as a likeable, enthusiastic, well-behaved child who made academic progress. Comments also noted that Student’s reading and writing skills developed slowly because of a hearing loss, but this issue does not appear in subsequent documents and is not addressed by either party. (S-A)
4. In Grade 2, Student continued to “consistently” achieve personal competencies including those related to organization and task completion. Academically, she earned mostly “steady progress” ratings, and, in some subjects, earned “demonstrated strength.” Year-end teacher comments for second grade describe Student as focused and persistent, “creative, artistic,” and note improved math and reading skills. (S-A) In the spring of second grade, Student’s reading and spelling scores on the Iowa Tests of Basic Skills placed her in the 67 th to 86 th national percentile ranks. (S-C)
5. In third grade, (1997-98) Student “consistently” performed all social and personal objectives, and “demonstrated strength” in all academic subjects. Teacher comments note that Student had some struggles with homework completion because of her involvement with gymnastics, but was making an effort in this area, and showed “much creativity and organization” in special projects. The teacher was “impressed” with Student’s ability to “[illegible] so many activities.” (S-A).
6. In the first marking period for Grade 4 (SY 1998-99), Student only “sometimes” completed tasks and projects within a reasonable time, but improved during the school year, so that by the last marking period, her assignments were “well-organized and on time.” Grades in all subjects were “demonstrates strength.” (S-A) MCAS ratings were “needs improvement” for English, math and science. (S-C)
7. In fifth grade (SY 1999-2000) Student’s personal competencies were similar to those shown in prior years. In academic subjects, Student earned final grades of 3 B pluses, one B (in math), and one A (in social studies).
8. Student also did well in middle school. Her grades were mostly in the A-B range, except for C’s in math in grades 6 and 7. (S-B) She achieved a rating of “proficient” on the English Language Arts section of the MCAS in seventh grade (Spring 2001). (S-C)
9. Student entered Needham High School (NHS) in September 2002. NHS offers core subject courses at several groupings or “levels.” In addition to a “basic” level, NHS offers three college preparatory levels: Standard, Honors, and Accelerated.2 (S-D, Para. 3). Teachers recommend levels for each student, but students, in consultation with parents and guidance staff, make the final selection. (S-D, Para. 3) Approximately 90% of NHS graduates attend four-year (84.2%) or two-year (4.9%) colleges. (S-E)
10. In ninth grade (2002-2003), Student took Honors English and biology and Standard algebra, biology, Spanish, and world history, (as well as directed study, PE, and photography). Student’s final grades were all in the B range except for an A and A- in algebra and world history, respectively.
11. For the current year (tenth grade), Student has been enrolled in Honors English and history and Standard Spanish 3, geometry and physics. Again, according to the record, Student’s grades as of February 2004 are all in the A-B range. (S-H)
12. Student’s parents have been concerned that Student has slow processing speed, difficulty getting started on projects, finishing work in a timely manner, and completing tests within time limits. (P-A)
13. Student herself has been concerned about test-taking. In her affidavit in support of Parents’ motion for summary decision, Student states that she has always had trouble finishing tests, no matter how hard she studies and tries to organize the material. She further states that her teachers know that she is usually the last one finished and usually doesn’t finish tests. A couple of teachers let Student stay longer or finish her tests after school, but she cannot count on them doing so. (P-C) Attached to Student’s affidavit is a history test, which she failed even though she had studied for about eight hours over two days. The test was timed, and Student was nervous about not being able to finish. She knew the answers but “was so rushed that [she] just wrote whatever [she] could to get done.” (P-C)
14. In order to make up for reportedly poor performance on tests, Student spends a lot of time on her homework assignments and gets good grades on them. She also does as much extra credit work as she can. Student arrives home from school at around 3 PM, sleeps until dinner, and then does homework between 7PM and 1:30 AM. She gets up at 6 AM for school. Student is often tired. She knows she spends more time than her friends do on their homework. (P-C)
15. In October 2003, because of the concerns referred to above, Parents had Student privately evaluated by a neuropsychologist, Marilyn Engelman, Ph.D., of Educational Directions. (P-A) Neither party sought evaluation from a psychologist or other professional employed by Needham, and neither party disputes Dr. Engelman’s evaluation report.
16. Dr. Engelman administered the following standardized tests: the WISC-IV, the Wide Range Assesment of Memory and Learning (WRAML), the Rey-Osterreith Complex Figure Drawing (Rey), the Woodcock-Johnson Psycho-Educational Battery—Third Edition (WJ-III), (which in turn comprises the Tests of Cognitive Ability and Tests of Achievment); the Nelson-Denny Reading Test, and the Test of Written Language—3, (TOWL-3). (Id.)
17. On both tests of general cognitive ability (the WISC-IV and the WJ-III Tests of cognitive ability), Student’s overall scores were in the high average range. On the WISC-IV, she showed significant strength with “superior” scores” on measures of attention, concentration, and short-term auditory memory (“Working Memory Index”). She also did well on untimed tasks calling for nonverbal reasoning, organization, and attention to visual detail (Perceptual Reasoning Index ). She did less well (lower end of average) on timed tasks in this domain because of her slow processing speed. Student’s Verbal Comprehension Index scores were average overall, reflecting high average ability to define words, and average verbal reasoning skills. (Id.)
18. Results of the WJ-III Tests of Cognitive ability were consistent with the WISC-IV tests, showing that Student’s overall cognitive ability falls in the high average range, with particular strength in ability to retrieve familiar information and in visual-spatial thinking, and relative weakness (although still in the average range) in ability to attend to details with distracting background noise, ability to solve non-verbal logic-type puzzles, in processing speed for non-verbal information such as numbers3 and fluid reasoning. The results of the WRAML revealed that Student has well-developed memory skills, and “superior” short term and visual memory. (Id.)
19. Finally, Student’s performance on the Rey indicated that she has problems with organizing and sequencing ideas. According to Dr. Engelman’s report, “[t]his can be likened to her studying for midterm or final-type exams. [Student] tends to memorize material rather than truly understanding how to organize it.” (P-A)
20. On the academic portions of the WJ-III, Student achieved overall scores in the high end of average for reading and written language. On the Nelson-Denny Reading Test, Student needed time and a half to complete both sections, indicating that she needs to re-read and analyze questions before responding. With double time (1/2 hour) on the TOWL, Student wrote an excellent story; she would have written only 3 paragraphs of the story in the 15 minutes allotted.
21. Student’s weakest test performance was in the mathematics cluster of the WJ-III, where her scores fell in the low average range, which Dr. Engelman describes as “for her…an area of significant weakness.” Student had difficulty with specific skill areas (e.g., operations with mixed fractions). Overall, Student worked “very, very slowly,” particularly with word problems (where she wrote out each step) and with writing out number facts, and this lowered her scores. Student became frustrated and somewhat anxious when doing math problems, although she persevered. (P-A)
22. In general, Dr. Engelman noticed that Student was quite articulate but “difficulties were noted with nonverbal concepts especially when she was asked to sequence nonverbal material.” She needed extra processing time on tape recorded items, but given time could answer “quite succinctly.” (Id.)
23. Dr. Engelman’s summation of Student’s performance was that Student has high average cognitive abilility with greatest strengths in both auditory and visual memory areas, as well as a good vocabulary;” however, she “tends to memorize material rather than truly understand it…she has relied on her memory to study and to recall information.” As a result, Student works slowly and inefficiently, and “as longer and more complex assignments are needed, [Student] is having difficulty organizing her ideas.” While she reads well, she has difficulty breaking down more complex written material and takes a long time to do so. Finally, “math…is an area of significant weakness.” (Id.)
24. As a result of testing, Dr. Engelman diagnosed Student as having mild dyscalculia (DSM-IV315.1, Mathematics Disorder), as well as executive functioning and processing speed weaknesses (DSM-IV 315.9, Learning Disorder Not Otherwise Specified) and made several recommendations as follows:
· Extended time on all [tests] (which Dr. Engelman said Student would “benefit from”)
· Use of a calculator for all math problems, since math is an area of significant weakness, and math facts are not automatic
· Math tutoring several times each week
· Instruction in developing strategies for understanding and solving math problems
· Use of a monthly planner to organize and prioritize assignments
· Student would benefit from learning strategies for organizing the information presented to her and working more efficiently, including critical note-taking, semantic mapping, and pre-reading.
25. In late January or early February 2004, Parents made a written request for extra time on tests as a Section 504 accommodation based on Dr. Engelman’s evaluation and recommendations. (S-D; S-L) Parents’ request was handled by NHS guidance counselor Julie Bragg, who routinely processes requests for Section 504 accommodation at NHS.
26. During early February 2004, in preparation for an eligibility determination meeting, Ms. Bragg reviewed Dr. Engelman’s report with the school psychologist, gathered information from Student’s records and current teachers, and met with Student.
27. In their meeting, held on February 2, 2004, Student first told Ms. Bragg that she sometimes felt she did not have enough time on tests with “a lot of writing.” (Ms. Bragg’s contemporaneous notes also state “math sometimes—math is hardest subject,” but neither the notes nor Ms. Bragg’s affidavit explain this statement. I infer that Student stated that she sometimes does not have time to finish math tests.) Later in the meeting, Student stated that she always finished her exams but could use more time to check her answers. (S-D; D-1)
28. A summary of teacher observations written on February 11, 2004 can itself be summarized as follows: (S-J)
· Geometry (Standard): term grades: B, A. one of brighter students in class, often takes maximum time for written work, does not need more time but needs to be more efficient, spends much time making work look “neat and perfect,” ran into time problems with last assessment.”
· English 10 (Honors): term grades: B-, B-. Few in-class tests, teacher never limits time anyway, “doesn’t stand out as someone who takes a long time.”
· Physics (Standard): term grades: A- “doing great, needs no extra time.” Takes extra time understanding abstract concepts but does master them in the end.
· World and American History (Honors): Term grades: B-, B+ : Did not notice that Student does not complete tests. No other areas of concern. Works hard.
29. The Section 504 eligibility meeting was held on February 11, 2004 with Student, Parent, Ms. Bragg, and NHS Assistant Principal Leo Hogan. The data considered at the meeting included Dr. Engelman’s report, reports of teacher observations referred to above, middle and high school transcripts and standardized test scores also referred to above, and a report of Student’s meeting with Ms. Bragg. (S-K)
30. Needham determined that Student was ineligible for accommodations because her diagnoses of mild dyscalculia and weaknesses in executive functioning and process speed “are not substantially limiting. [Student’s] transcript reflects mostly A’s and B’s in all college preparatory curriculum. Standarized tests show that she is performing at a level commensurate with the general population in her age group.” (S-K)
31. Pursuant to NHS Section 504 procedure, Parents appealed the finding of non-eligibility first to the NHS Director of Guidance, Mr. Bruce Palombo, and then to Assistant Superintendant George Johnson. (S-M, N)
32. Notes that appear to be those of Mr. Palombo and directed to Mr. Johnson indicate that Mr. Palombo met with Parents and reviewed test data and teacher reports with them, and also told them, in essence, that Student has “no substantial limitation to learning,” and a “mild impairment at worst,” and therefore there is “no legitimate need to provide accommodations for a disability.” Mr. Palombo’s notes further state that Student and Parents can “petition ETS…directly for accommodations on SAT, but none needed in classroom.” In addition, the notes indicate that if the Assistant Superintendent also denies Section 504 eligibility, that Mr. Palombo offered to write a letter to the College Board to support extra time on SAT’s due to math relative deficiencies.” (S-M)
33. In a letter dated March 8, 2004, Assistant Superintendent Johnson upheld the determination of the school team because it followed appropriate procedures and reached a conclusion that was reasonable. (S-N)
34. On March 10, 2004, Mr. Palombo wrote a letter addressed “To Whom it May Concern” in support of an appeal by Student to the College Board for extended time on the upcoming PSAT. The letter states, in part, the following:
Dr. Engelman’s conclusions that [Student] does have “mild dyscalculia…” and “executive functioning and processing disabilities when too much material is presented at once,” appear to me to be well-documented and sound. These conditions…are likely to significantly impede [Student]’s ability to adequately demonstrate her capacity on the PSAT’s and SAT;s because the time constraints on these tests will not allow her to produce the work she is apparently capable of producing [with] more liberal time parameters. Because she has functioned well in our school setting and …is learning at a rate at least commensurate to those average students in her age/grade range in the national population, and because we have observed no “substantial limitation to her learning, we have not provided Section 504 Student Accommodations…[Student’s] success …has been, at least in part, attributable to her extraordinary investment in her studies and the consistent effort which she has expended to be successful. Her willingness to dedicate extra time to achieve at this level is a credit to her, but…it is likely that the time constraints of the College Board testing will not permit her to demonstrate her capacity to succeed in college in the same way she has here at Needham High School. Although extended time accommodations have not generally been required here, I do believe that [student’s] request for extended time for all College Board testing is responsible and reasonable… (P-B)
35. During the week of April 12, 2004, after Parents’ BSEA hearing request of March 18, Ms. Bragg obtained updated teacher reports that can be summarized as follows:
· English (college prep-Honors): Term grades: B-. B-, B-. Average in-class exam grades for each term: B-, B-, A
· Geometry (Standard): Term grade: B, A, A-: Grades depend almost entirely on tests and quizzes, which were A, A- , B+, B+. There were no test grades lower than B- during this school year, Student does not need extended time and is in top half of class
· Physics (Standard) (A-, Student has some of highest grades in the class on tests; very deliberate worker, does quite well, turns in homework, participates appropriately, does not need extended time on tests.
· Spanish III (Standard): Scores highly on most quizzes and tests; understands materials, does not need extra help or do additional activities to boost grade; understands material so well she helps other students before tests and quizzes; does not need extended time. Did some extra credit work to compensate for points lost for Academic Ethics violation.
· World/American History (Honors): Term grades: B-, B+ . Test scores: Term 1, 70, 62, 72 out of 100; Term 2: 84, 76, 98; Term 3: 93, 83, 86, 58. This 58 is the only failing test grade. (See Ex. P-C) Teacher feels Student does not need extended time to complete tests.
FINDINGS AND CONCLUSIONS
Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794, prohibits discrimination on the basis of disability in programs or activities that receive federal funding, including public elementary and secondary educational programs. In pertinent part, the statute states:
[N]o otherwise qualified individual with a disability… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….
29 USC Sec. 794(a); 34 CFR Sec. 104.4(a)
In order to comply with Section 504, every public elementary and secondary education program that receives federal funds4 is required to conform with regulations promulgated by the U.S. Department of Education, codified at 34 CFR Chapter I, Subpart D, Sec. 104, and to provide a free, appropriate public education (FAPE) to each qualified person with a disability in its jurisdiction. For students with disabilities who are eligible for special education under the IDEA, school districts can comply with the Section 504 FAPE requirement by implementing an individualized education program (IEP) in accordance with the requirements of the IDEA 34 CFR Sec. 104.33(b)(2). On the other hand, disabled students who are not IDEA-eligible are nonetheless entitled to “…education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of Secs. 104.34, 104.35, 104.36.” 34 CFR Sec. 104.33(b)(1)(i), (ii).
The procedures referred to in the previous paragraph include, in pertinent part, use of appropriately validated and administered test instruments; basing placement and service decisions on information “from a variety of sources, including aptitude and achievement tests, [and] teacher recommendations…” and having placement decisions made “by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options…” 34 CFR Sec. 35(b) and (c).5
To qualify for Section 504’s protections, a student must have a disability pursuant to the US DOE regulations, which define a “handicapped person” as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities…”6 34 CFR Sec. 104.3(j)
The regulations further define “mental impairment” (the only type of impairment at issue in this case) as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 34 CFR 104.3(j)(2)(I)(B). The list contained in the regulations is not meant to be exhaustive, because unlike the IDEA, Section 504 “does not limit the definition of handicap to a list of specific conditions.” OCR Ruling, Puyallup (WA) School District No. 3, 17 EHLR 1136 (May 23, 1991), cited in New Bedford Public Schools , BSEA No. 01-3505, 7 MSER 261 (Crane, November 15, 2001) Further, “[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment…but rather on the effect of that impairment on the life of the individual.” Toyota Motor Manufacturing, Ky, Inc. v. Ella Williams , 534 US 184 (2002) (internal citations omitted).
Major life activities” are defined as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 34 CFR 104.3(j)(2)(ii). While learning is explicitly listed as a major life activity, the regulation does not clearly define which of the many discrete tasks and skills that are subsets of “learning”—reading, writing, calculation, test-taking–are themselves major life activities, either alone or in combination.7 In Westport Board of Education , 40 IDELR 85 (SEA CT, 2003), a hearing officer did assume (without further discussion) for purposes of that case, that test taking was a major life activity for a high school student whose performance is measured by tests and quizzes.8 Id . On the other hand, to be entitled to accommodations in school, a student need not be impaired in the area of learning, so long as the impairment of a major life activity affects the student’s ability to perform the basic tasks of a student (e.g., attending school, for children with health or mobility impairments; see Weixel v. Board of Education of the City of New York, et al. , 287 F.3d 138, at 147 (2d Cir. 2002)).
An impairment is “substantially limiting” if it “renders an individual unable to perform a major life activity that the average person in the general population can perform or if it significantly restricts the condition, manner or duration under which the average person in the general population can perform that same major life activity. “ Bercovitch v. Baldwin School, Inc ., 133 F.3d 141, 156 (1 st Cir. 1998), citing ADA regulations at 29 CFR Sec. 1630.2(j)(1).9 In the education context, the standard for comparison is the average student of the age of the student in question. Id . Unlike the IDEA, Section 504 does not require consideration of a student’s potential when determining coverage or FAPE. Rather, under Section 504, a student’s achievement is measured against that of the average person his or her age. Bercovitch at 155-156. The Eighth Circuit held that even impairments that were moderately limiting did not per se render a child disabled under the ADA. Costello v. Mitchell Public School District 79, 266 f.3d 916 (8 th Cir. 2001).
Further, a “substantially limiting” disability “is more than just a condition that makes one “different from others…Rather, the inability to enjoy a major life activity must be ‘considerable’ or ‘significantly restricted….’” Pacella v. Tufts University School of Dental Medicine , 66 F. Supp. 2d 234, 238 (D. Mass. 1999) citing Albertsons , Inc. v. Kirkingburg , 527 U.S. 555, 565 (1999) and Sutton v. United Air Lines, Inc ., 527 US 471 (1999).
Albertsons and Sutton , the two Supreme Court decisions referred to above, have limited the meaning of “substantially limiting” by holding that the positive and negative effects of mitigating or corrective measures must be considered when determining if a person’s condition is substantially limiting, such that “those whose impairments are largely corrected by medication or other devices are not ‘disabled’ within the meaning of [the ADA and Section 504].” Sutton , at 483. In Albertson’s, the Supreme Court expanded on its holding in Sutton by ruling that in addition to external aids such as medication, corrective lenses, etc., courts should consider “measures undertaken, whether consciously or not, with the body’s own systems…” (such as self-accommodation to certain vision problems). Albertsons at 565-566.10
Here, the threshhold issue is whether Student is an “individual with a disability” as defined in Section 504 and the pertinent regulations. If not, the inquiry stops, because Student is not entitled to FAPE as defined by Section 504. If so, the inquiry becomes whether the accommodations requested meet the FAPE requirements of the Section 504 regulations.
Based on a review of the evidence presented, as well as the arguments of the parties, I find that Student is not entitled to accommodation under Section 504 because her mild dyscalculia and “learning disorder n.o.s.” even assuming that they constitute “mental impairments” within the meaning of the regulation, and that they affect the major life activity of learning, do not substantially interfere with that major life activity (or any other). My reasoning follows.
As stated by the School in its Memorandum in Support of its Motion for Summary Decision , for Student to establish Section 504 eligibility she must (a) demonstrate that she has a physical or mental impairment within the meaning of the statute, (b) identify the activity affected by the impairment and show that it is a “major life activity,” and (c) show that the impairment substantially limits the identified major life activity. See also , Bragdon v. Abbott , 624 U.S. 624 (1998)11 a) Existence of an Impairment
For purposes of this Ruling, I assume that Student’s dyscalculia and processing weaknesses, either separately or in combination, are impairments within the meaning of Section 504. Although the School asserts in its initial memorandum that Parents have not shown Student to have an impairment, given her strong school performance,12 the school does not dispute Dr. Engelman’s diagnoses, and does not proffer expert affidavits or other evidence suggesting that Student’s problems should not be considered impairments. The only dispute is whether these conditions “substantially limit” a major life activity. b) Identification of Major Life Activity
Parents identify test-taking, learning mathematics, and “accessing the curriculum” as the major life activities affected by Student’s impairments. Parents’ Memorandum in Support of Motion for Summary Decision , pp. 2, 4. I will assume for purposes of this case that these activities are sufficiently important parts of the educational process to be included within the major life activity of learning. 28 CFR Sections 36.104, Bercovitch at p. 155. The School asserts that the only identified activity here is test-taking or “improving performance on tests to obtain more competitive grades” and that these are not major life activities. School’s Memorandum in Support of Motion for Summary Decision , p. 9. This is an overly narrow characterization of Parents’ position, in light of Student’s difficulty with math and documented problems with starting and completing projects, as well as tests, in a timely manner. See Fact No. 12, above. See also Whitney v. Greenberg, Rosenblatt, Kull, Bitsoli, P.C ., 258 F.3d 30, 33, FN 7 (1 st Cir. 2001) where the First Circuit stated that it was reasonable to subsume activities such as thinking, concentrating, organizing data, processing information, and interacting with others, as subsumed within the broader context of working and learning.
c. Substantial limitation
The undisputed facts show that even if Student struggles with completing some tests or assignments in a timely manner, if her problems with executive functioning prevent her from achieving to her maximum potential on timed tests, or that this causes her to occasionally fail tests, her overall skill level and performance is as good as or better than that of the average student her age. In a highly competitive high school, Student generally earns grades in the A-B range in challenging subjects such as physics. In fact, since kindergarten, Student consistently has earned at least average, and usually above average grades and test scores and has garnered positive teacher comments on her academic performance as well as on such important personal attributes as persistence, willingness to work hard, creativity, enthusiasm, and kindness. (S-A) Further, Student has maintained her academic performance and admirable behavior while seriously pursuing gymnastics and dance, in which she is very talented, as well as participating in other extracurricular activities such as drama.
Moreover, as stated in the Statement of Facts , above, Student does not show other signs of being limited in or outside of school as a result of her impairments. She has never repeated a grade, failed a subject, taken a remedial course, been on an IEP, had to go to summer school, been suspended, or had problems with attendance or punctuality. See, for example, Westport Bd. of Education , supra . Neither party has presented evidence of problems functioning at home or in the community. The uncontested facts simply do not show “substantial limitation” within the meaning of the statute.
Parents argue that Student only is able to succeed because she “self-accommodates” by spending an inordinate amount of time on homework and extra credit projects to make up for failing test grades,13 and because she takes “Standard” rather than “Honors” courses. Parents also argue that but for de facto, informal accommodations by some teachers, Student would not be doing as well as she is.
Here, even if hard work is considered a mitigating measure along the lines of eyeglasses or “personal, unconscious adjustments to [her] impairment”14 it is unnecessary to analyze its positive and negative effects because the parties’ submissions contain insufficient evidence of whether and how the amount of time Student spends on school work is excessive. The only such evidence is Student’s statement that she spends more time studying than her friends, and detailing the times at which she does her schoolwork.15 Assuming that Student’s observation is accurate, neither party has submitted evidence on how much homework NHS students are expected to do or typically do. Further, there is little or no evidence that if Student spent less time on schoolwork that she would do substantially worse in school than the average student her age. Finally, that Student must work hard for her excellent academic record does not mean that her ability to learn is substantially impaired. Rather, by working hard Student shows that she is diligent and motivated. As Dr. Engelman commented, Student—like many teens and adults– might benefit from learning certain skills, such as how to prioritize assignments, organize large amounts of information, budget her time, and generally increase her efficiency. That Student is less efficient than she could be, however, does not make her a person with a disability within the meaning of Section 504 because her overall performance is better than that of the average student her age, and even in her weak areas, her performance is at least average. In other words, the agreed-upon facts do not show that any aspect of the major life activity of learning is “considerably or significantly restricted.” Pacella at 238 (citations omitted).
As for the difficulty level of Student’s courses, Parents argue that Student has the potential to do well in Honors courses, with accommodation, but that without such accommodation she must take Standard courses to be assured of passing, and therefore, is not working up to her potential. However, as stated above, Section 504, unlike the IDEA, does not consider a student’s individual potential in determining eligibility or FAPE, but rather, whether a student is achieving as well as the average person his or her age. Even if Student’s performance would be enhanced with accommodations, she cannot be considered to have a “substantial impairment” simply because she is taking less difficult courses than she would take if she had accommodations.
Finally, the guidance counselor’s letter to the College Board recommending extended time on the PSAT and SAT, or some teachers’ practice of informally extending the time for Student’s tests do not require a finding of Section 504 eligibility in school. Mr. Palumbo’s letter requests extended time for Student to perform up to her potential on the SAT’s. As stated above, Section 504 calls for comparing Student’s functioning to the average person her age, not her own potential given accommodations. Moreover, that Student might benefit from extended time on tests, or her teachers might want to see the full extent of what she has learned and therefore give her extended time, does not transmute into a disability.
Parents are concerned that as the demands of school become greater, Student’s math and organizational problems will become increasingly problematic. This may very well be the case. Whether or not a student is deemed disabled depends on the effects of an impairment on an individual. Bercovitch , Bragdon v. Abbott , supra . Therefore, Student certainly may apply for coverage under Section 504 in the future, and her eligibility will depend on her circumstances at that time. Now, however, the evidence presented simply does not warrant a finding that Student has a disability as defined by the statute.
CONCLUSION AND ORDER
For the reasons stated above, based on the uncontested facts, Student does not have an impairment that substantially limits a major life activity. Therefore, Student is not entitled to accommodations under Section 504 of the Rehabilitation Act, and Parents’ request for an order requiring the Needham Public Schools to provide such accommodations is denied. This Order does not prohibit, and is not intended to discourage Needham from assisting Student with her areas of weakness on a voluntary basis.
____________________ _____________________________
Sara Berman, Hearing Officer
1
In its May 4 memorandum , Needham argued that if the Hearing Officer rules against Needham in this matter and declines to dismiss Parents’ case, then it must also deny Parents’ Motion for Summary Decision “because the factual allegations Complainants seek to rely on are most certainly disputed.” In their Sur-Reply Memorandum, Parents object to Needham’s request, asserting that it is “unfair and prejudicial for Needham to have stipulated that there were no disputed facts and agreed that [Student’s] appeal would be decided on cross-motions for summary disposition and then…suddenly claim that there are disputed facts that require a hearing…” I need not resolve this issue because the facts that one or the other party claims may be disputed are not material to the central issue in this case, namely, whether Student is an individual with a disability pursuant to Section 504.
2
Parent asserts that the “Standard” courses are not true college prep courses, but provides no documents or affidavits in support of this proposition. On the other hand, Needham has provided the affidavit of a guidance counselor stating the contrary. Therefore, I find that Standard courses are college preparatory. Although this difference between the parties arguably is a factual dispute, it is not material to the central issue in the case, provided that the courses at issue are regular education, non-remedial classes that lead to credit towards a NHS diploma.
3
Student scored “low average” on one type of processing speed task, but “high average” on another which involves reasoning skills.
4
There is no dispute that the Needham Public Schools receives federal funding.
5
Parents do not allege that Needham has violated any of these procedural regulations.
6
The definition also includes persons who have a record of impairment or are regarded as having impairments, but this portion of the definition is not applicable here.
7
Not every function that might be affected by an impairment is a “major” life activity. Courts have defined a “major life activity” as one that is “of central importance to most people’s daily lives; thus, while “working” and “performing manual tasks” are major life activities, a specific class of manual task that might be part of a particular job, like working on overhead objects, may not meet this definition. Toyota Mfg. v. Williams , supra , at 534 US 222 (2002). Note however, that to be eligible for Section 504 protection, “there is no requirement that the major life activity from which an individual is disabled be the exact activity in which the defendants are engaged.” Weixel , supra . Thus, a student with a mobility impairment is protected by Section 504 in the school context, even if her learning is not affected by the impairment.
8
Hearing officer decisions are not binding precedent but may be used for guidance.
9
It is well settled in the First Circuit and others that the same criteria and analysis are used to establish disability under both Section 504 and the ADA, and that cases arising under one statute can be used as precedent for cases under the other. Bercovitch v. Baldwin School, Inc ., 133 F.3d 141, 151-152 (1 st Cir. 1998); Weixel, supra.
10
In the First Circuit, Sutton and Albertsons “tacitly overruled” cases that held that disabilities should be determined without reference to mitigating measures. Pacella at p. 238 (citations omitted)
11
Bragdon discusses the definition of disability under Title III of the Americans with Disabilities Act (ADA), 42 USC Sec 12102.
12
Needham’s Memorandum in Support of Motion for Sumary Decision, pp. 8-9
13
I note that Parent produced documentary evidence of only one failed test throughout Student’s academic career.
14
See Sutton and Albertson’ s , supra.
15
In her affidavit, Student states that she arrives home from school at about 3 pm, naps until dinner, then does homework from about 7 PM to 1:30 AM. She has to get up at 6AM and is always tired. (P-C) I note without any criticism implied that if Student did homework between, for example, 3:30 and 6 PM, and resumed at 7PM, she would be finished before 10 PM. This would at least allow her more uninterrupted sleep.