Title IX prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. This means that all public high schools and middle schools (as well as elementary schools) must comply with Title IX. Under Title IX, public schools are required to protect students from sexual harassment and sexual assault.

Public schools must also comply with federal laws which protect the rights of students with disabilities. Section 504 of the Rehabilitation Act prohibits discrimination against individuals with disabilities and ensures that a student with a disability has equal access to an education. Under Section 504, a student may receive accommodations in public school (a “504 Plan”). The purpose of the Individuals with Disabilities Education Act (“IDEA”) of 2004 is “to ensure that all students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . .” A “free, appropriate public education” is often referred to as “FAPE.” Under IDEA, a child who is eligible for special education will have an Individualized Education Program (“IEP”).

Significantly, both Section 504 and IDEA protect disabled students from being improperly removed from school for misconduct that is related to their disability. Before a school can impose certain discipline, it must first determine whether the student’s offending conduct was a “manifestation” of his or her disability. If a school finds that the conduct was a manifestation of the student’s disability, then the school is prohibited from imposing some of the harsher forms of discipline on the student.

So, what happens when a high school student complains of sexual harassment by a student with a disability?
Public schools must comply with all applicable federal laws, but these laws can sometimes conflict with one another. Currently, there is a fight between competing federal protection laws in Palo Alto, California. There, a school district has asked a judge to uphold a lower court’s decision to permit a male high school student who had sexually harassed a female high school student, to remain on the school’s robotics team where the girl participates. The boy has an IEP for his significant pragmatic speech disability. The school system initially barred the boy from the robotics team. However, after legal action by the boy’s mother, the school system allowed the boy to participate in robotics, provided that an additional staff member is present. The girl’s parents then filed a motion which resulted in the school system again barring him from robotics. The boy’s mother then argued that, by barring him from robotics, the school district violated the IDEA and discriminated against him on the basis of his disability. She also argued that the text messages and comments he made to the girl were manifestations of his disability.

The conflict between a disabled student’s right to FAPE and another student’s right to be free of sexual harassment in school is clearly implicated when a student with Autism Spectrum Disorder (“ASD”) is accused of sexual harassment. One of the core symptoms of autism is a challenge of social communication. A difficulty reading social cues and understanding appropriate interpersonal space and communication is a particular concern in Title IX matters. In Maryland, ASD affects an average of one in 31 boys and one in 139 for girls. In the U.S., ASD affects an average of one in 39 boys and one in 152 girls.

The clash between Title IX protection and disability protection can provide significant challenges for students, their parents, and the schools which are required to protect all students. If you have a child who needs help with a disciplinary or disability matter in a Maryland public school, please contact me at lbecker@offitkurman.com or (240) 507-1780.

ABOUT LISA BECKER

lbecker@offitkurman.com | 240.507.1780

Lisa Seltzer Becker began practicing law in 1996. Since then, she has helped many clients in Maryland and the District of Columbia with their family law issues, including high-conflict divorces, custody cases involving special needs children, domestic violence, and premarital and postmarital agreements. Lisa is an experienced litigator, but is also a trained Collaborative practitioner and trained mediator.

For the last twelve years Lisa has also represented numerous students and families in education matters, including school discipline and bullying in public and private schools, and campus sexual assault/Title IX cases and academic misconduct cases in colleges.

ABOUT OFFIT KURMAN

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