Seattle Special Education Advisory and Advocacy Council

c/o Seattle Special Education PTSA

Seattle Public Schools
SPED PTSA 11-951
PO Box 34165
Seattle WA 98124-1165
February 19, 2014
Mr. Ron English
Seattle Public Schools
Office of General Counsel
P.O. Box 34165MS 32-151
Seattle, WA 98124

Dear Mr. English,
Thank you for your February 15, 2014 draft paper on the prevention of discrimination in
enrichment programs in Seattle Public Schools. We thank you for that consideration and for the
time you have spent on this issue and for the consideration privacy as well. We deeply appreciate
the opportunity to review this paper, but we of students with disabilities. We are glad that the
procedure has been amended to reflect our concerns about student wish to identify some
remaining concerns as well as some suggestions on how to proceed from here.
Here are the concerns identified by members of the Superintendents Special Education Advisory
and Advocacy Council as well as Seattle Special Ed PTSA:

1. The stated nondiscrimination intent of procedure does not align with effects of the
procedure.
From the Districts draft paper:
Why does the procedure have to say anything at all? Technically the procedure does not
need to include the anti-discrimination language, since that is merely a restatement of
existing law. However, the remainder of the paragraph is intended to apprise enrichment
program providers who receive significant assistance that they have an affirmative
obligation to serve students with disabilities and to provide guidance as to how to
determine what is needed to meet their obligations.
The above comment gets at the heart of the issue. The District does not need to give a legal
opinion to write a procedure to implement the law, when the only purpose of the procedure is to
ensure the basic mandates of RCW 49.60.030. The law itself is enough. When we see a policy
or procedure that attempts to extend a basic mandate, though, and interpret it to say something it
does not, we begin to suspect a disingenuous attempt on the part of the District to deny access.

2

If the District was actually seeking to provide more disability access than the law intended, that
would be something to put into policy. But that is not what we found. We understand from the
procedure 4260 addendum on disabilities, as well as the subsequent edit, that the Districts
intention is to limit its responsibility to students with disabilities. The procedure does not
mention any action the community could take when they are denied access. There are no
penalties that the District would impose on third parties. Therefore, it is reasonable to interpret
that the Districts intention here is to do the absolute minimum they could possibly get away with
and to define the absolute minimum bar for accountability. We believe it is for courts and IEP
teams to make those determinations, not policy writers.

2. The District paper contains arbitrary, invented, and inconsistent distinction between
enrichment and extracurricular, for which neither IDEA nor Section 504 of the
Rehabilitation Act contain any such limit.
The initial point of this briefing was an arbitrary set of definitions of activities: enrichment and
extracurricular. We find these definitions to be problematic. Looking to Individual with
Disabilities Education Act (IDEA) of 2004 and the Americans with Disabilities Act (ADA),
neither define these terms. The Washington State Administrative Code, WAC 392-121-107,
states that extracurricular activities are activities including but not limited to before and after
school activities such as classes, sports and other activities offered outside the regular curriculum
or for which credit is not earned. The District paper seems to imply it is not responsible for
something it has arbitrarily called enrichment. Further, the District tries to put as many
activities as possible into the enrichment bucket, thereby relieving itself of responsibility.
The distinction between what the District defines as enrichment and extracurricular is not clear to
the average observer. Many activities are funded or co-sponsored by ASBs, PTAs, local
businesses, district, booster clubs and participants. A quick survey of the activities on the Ballard
High School website shows a mix of activities that are staffed by District staff or not, take place
on high school property or not, take place during the school day or not. And in terms of the
Districts distinction as to funding-- most, if not all, do not state any particular source of funding.
Further research indicates that the PTSA raises funds for enrichment programs which are
sponsored by the district, as well as the ASB. Many activities seem to be participant-funded,
including district-sponsored athletics, as well as club sports, which the District claims are
enrichment. Determining the exact proportion of funding of any particular activity would be
overly confusing for everyone.
Further, the Districts own recent guidance page for PTAs and PTSAs, entitled PTSA/PTO
Frequently Asked Questions,
1
contains an activities matrix which makes no such distinction and
includes such activities as model rocketry as well as club sports as approved extracurricular

1
Seattle Public Schools District webpage, PTSA/PTO Frequently Asked Questions, available at
http://www.seattleschools.org/modules/cms/pages.phtml?sessionid=&pageid=304259 and Activity Matrix,
http://www.seattleschools.org/modules/groups/homepagefiles/cms/1583136/File/Departmental%20Content/risk%20
management/Activity%20Matrix.pdf
3

activities. The classifications of activities in this matrix include athletic, extracurricular,
curriculum-related, and banned. No classifications are noted as enrichment.
Finally, the Department of Educations Office of Civil Rights (OCR) has already given guidance
for extracurricular athletics in its January 13
th
2013, Dear Colleague letter. The first line of this
document specifically lists club sports as extracurricular, not enrichment.
2


Extracurricular athleticswhich include club, intramural, or interscholastic (e.g.,
freshman, junior varsity, varsity) athletics at all education levelsare an important
component of an overall education program. The United States Government
Accountability Office (GAO) published a report that underscored that access to, and
participation in, extracurricular athletic opportunities provide important health and social
benefits to all students, particularly those with disabilities.
Notably, according to the District, club sports are part of enrichment in its draft document. Yet,
the first sentence of the OCR DCL has already judged them to be extracurricular AND even
more importantly, part of all schools responsibility for assuring nondiscrimination. The letter
from the OCR does not address other extracurricular activity beyond athletics. But, we should
infer that the same reasoning would hold for other extracurricular activities, and that clubs would
also be considered extracurricular. In short, theres no support for a free pass in responsibility
for something called enrichment.

3. The District fails the Department of Education Office of Civil Rightss lacks
substantial relationship test.
We believe that the District is using this strategy of delineating enrichment from extracurricular
as a device parallel to the Department of Educations Office of Civil Rights use of the phrases
substantial relationship and lack substantial relationship as is cited in a memo dated March
20, 2009, by the School and College Legal Sources of California entitled Districts Have Duty to
Ensure Students with Disabilities in After-School Program Have Equal Access.
3
However, this
strategy by the District works entirely against the argument that they put forth. The District has
gone to great lengths to establish substantial relationships with many community based
organizations, and in fact, the District has developed a framework for establishing such
relationships in the Schools-Community Alignment Initiative which states that
Alignment is a framework that guides how schools, school-based preschool and
afterschool programs, families and communities work collectively to support the
academic pursuits of children and youth. It is also a tool to ensure that schools,
preschools, afterschool programs and health centers reflect, holistically, the

2
U.S. Department of Education Dear Colleague letter, January 13, 2013 available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf
3
Corbin, Carl. Memo 09-2009: Districts Have Duty to Ensure Students with Disabilities in After-School Program
Have Equal Access, March 20, 2009, available at http://www.californiaafterschool.org/articles/PEADS.pdf
4

developmental needs of children and youth and that afterschool programs complement
the teaching and learning happening during the core school day
4


This document is lengthy, but notably, it includes the following statement:

Alignment increases standards-based instructional time. The School Board signaled
their support of the this effort via revisions made in 2001 to Board Policy E51.00, which
in summary allows for rent, or a portion thereof, to be waived to out-of-school time
(OST) providers (childcare/pre-k, early learning programs, before and after school
programs, community learning centers, summer enrichment programs and health centers)
that can demonstrate alignment of their programs with school curriculum and thus
increase standards-based instructional time to Seattle Public Schools students.

The Alignment Initiative includes measures for accountability, and it states that that afterschool
programs be included as an element in the continuous school improvement plans. Seventy-five of
the Districts schools currently have alignment programs in place.

Seattles PTAs are unique in that they provide funding, staffing and volunteers for many in-
school and afterschool activities as well as programs and staff salaries which normally would be
funded and staffed by District. In fact, the District has a long-standing relationship with PTAs
that provide this funding. Per OCRs rulings, districts which have developed substantial
relationships with afterschool activity providers are responsible for addressing students
possible 504 needs in those afterschool activities, and we believe there is sufficient evidence to
prove that the District has developed substantial relationships with both PTSAs as well as
member organizations of the Districts Alignment Initiative.


4. The Districts procedure undermines IEP process and places illegal limitations on scope
of IEP.
The Districts document then proceeds to dictate the limits of FAPE (Free Appropriate Public
Education). Per the draft:
The scope of an IEP is limited to the requirement to provide a (FAPE). That IEP scope
should not be expanded to include activities which are not sponsored by the District,
unless in the unusual instance when an IEP team determines that participation is
necessary for the particular student to achieve basic educational goals.
It is not for policy writers to determine the limits of FAPE (Free Appropriate Public Education).
Nor does the IEP limit participation to basic education goals. According to IDEA, The public
agency must ensure that each child with a disability has the supplementary aids and services
determined by the childs IEP Team to be appropriate and necessary for the child to participate in
nonacademic settings. 34 C.F.R. 300.117

4
Seattle Public Schools Community Alignment Initiative Overview, Terms and Conditions available at
http://www.seattleschools.org/modules/groups/homepagefiles/cms/1583136/File/Departmental%20Content/ocl/partn
er%20renewal/termsconditions.pdf
5

IDEAs full requirement specifies a childs related services must be included in his or her IEP.
This appears at 300.320(a)(4) and stipulates that each childs IEP must contain:
(4) A statement of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable, to be provided to the
child, or on behalf of the child, and a statement of the program modifications or supports
for school personnel that will be provided to enable the child
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved in and make progress in the general education curriculum in
accordance with paragraph (a)(1) of this section, and to participate in extracurricular
and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and
nondisabled children in the activities described in this section [300.320(a)(4)]
We have bolded the part of IDEAs regulation that specifically mentions related services,
because it is important to see the context in which this term is used. It is that context, and
IDEAs own definition of related services particularly in reference to extracurricular and
nonacademic activities, that will guide how a childs IEP team considers what related services
the child needs for participation in these activities.
Additionally, and this is an equally important concept, the IEP must specify what is necessary
not only for FAPE, but for nondiscrimination and access as well. When IDEA was reauthorized
in 2004, Congress made the IEP team responsible for determining whether supplementary aids or
services are necessary for ensuring that a special education student has an equal opportunity to
participate in nonacademic extracurricular activities. The Minnesota Supreme Court ruling
in Independent School Dist. v. Minn. Dept of Education (Oct. 7, 2010) held that IDEA requires
school districts to take steps to provide extracurricular and nonacademic activities to afford the
student an equal opportunity to participate. The syllabus of this case reads:
Federal regulations 34 C.F.R. 300.107, 300.117, and 300.320(a)(4)(ii) (2010),
promulgated under the Individuals with Disabilities Education Act do not limit
extracurricular and nonacademic activities included in an Individual Education Program
(IEP) to extracurricular and nonacademic activities required to educate a disabled student.
A disabled students IEP team determines the extracurricular and nonacademic activities
appropriate for inclusion in a disabled students IEP. A disabled students IEP team
determines which supplementary aids and services are appropriate and necessary for the
student to participate in extracurricular and nonacademic activities.
5

In summary, the IEP team must consider whether supplementary aids or services are necessary to
provide a student with a disability with the same opportunity as his or her nondisabled peers.


5
Independent School District No 12, Centennial, v. Minnesota Department of Education (2010) available at
http://lawprofessors.typepad.com/files/mde_v_isd_12_minn_2010-1.pdf
6

The District claims that the scope of an IEP should not be expanded. Parents do not seek to
change or expand the limits of an IEP, nor is it permissible for the District to attempt to shrink
the scope of an IEP. The District claims that participation in an enrichment activity is now an
unusual instance for FAPE, and this statement is, in fact, an example of the type of
discrimination that IDEA 2004 seeks to confront. Participation in an enrichment activity should
not be an unusual instance of FAPE, and more importantly, it is an element of access that is
specifically called for by the plain language of IDEA 2004.
The time and place to determine the limits of FAPE and 504 access is at the IEP meeting. It is
NOT a matter of policy for a single administrator to determine, nor limit. When IEP teams
cannot agree, procedural safeguards protect families. With procedural safeguards, it is left to the
courts to decide what is basic, what is a floor of opportunity, what is enrichment, what is
extracurricular, what is access and what constitutes student needs. These are not matters
for SPS policy and procedure.
As it is, students with disabilities are routinely denied access to services and aids they should be
getting. SEAAC has and will continue to document the Districts failure to provide access to
field trips, camp, length of school day, electives, and access to all sorts of extracurricular
activities to students with disabilities.

5. Third party agreements do not relieve the District of IDEA or 504 obligations.
Generally speaking, agencies cannot avoid civil rights obligations by contracting them out.
Specifically, IDEA and Section 504 of the Rehabilitation act provides the State and the public
agency with no regulatory authority over private non-profits, and whether or not the District
enters into agreements with private agencies does not make private agencies liable for the
provision of FAPE nor the level of access called for in Section 504. Furthermore, entering into
such agreements does not relieve the District of its mandated obligation to provide for the
provision of FAPE and access to students who receive special education services. We agree the
District may engage in any agreements between themselves and third parties and even may
attempt to contract away its obligations through lease agreements. However, such agreements do
not relieve District of their individual responsibilities for the provision of FAPE or
nondiscrimination. Private volunteer organizations such as PTAs are not subject to either IDEA
or Section 504, but are subject only to Title III of ADA, which limits the concepts of
nondiscrimination and access to issues surrounding physical access and communication. Gaps
between these level of access and services would continue to remain the obligation of the district.
Please see Department of Educations Letter to Stockford 2005
6
(For similar issue, see
Hoewischer v. Terry, 2011 U.S. Dist
7
)

6
U.S. Department of Education Letter to Stockford 2005 available at
http://www2.ed.gov/policy/speced/guid/idea/letters/2005-1/stockford021705fape1q2005.pdf
7
MacGregor, Douglas Scott, Landlords: ADA Obligations Cannot Be Leased Away, LexisNexis Legal Newsroom
available at http://www.lexisnexis.com/legalnewsroom/real-estate/b/real-estate-law-
blog/archive/2012/10/18/landlords-ada-obligations-cannot-be-leased-away.aspx
7


6. Third party volunteer organizations have neither the capacity nor knowledge to
implement IDEA or Section 504.
Small third party volunteer organizations have frequent leadership turnover and limited training.
Requiring them to have knowledge of federal law concerning IDEA or Section 504 is unrealistic
and will lead to lack of implementation and further illegal discrimination. The District itself has
difficulties educating its own staff in this regard. We hold that that it would be impossible to
provide volunteers education around disabilities and special education that the District has not
provided to its own staff.

7. We are not unsympathetic to concerns regarding funding for either small volunteer
groups or the district.
We do not believe that the District is accountable for compliance with IDEA and Section 504
simply by virtue of the fact that we believe the District has deep pockets. We believe the District
is responsible because federal law makes it clear that it is responsible. We believe that the
District should plan to become compliant with federal law and budget for its responsibilities.
Moreover, we believe that the District should shoulder its responsibilities because it is the right
thing to do. That is why it is important to resolve this issue sooner rather than later.

8. The proposed District procedure places undue burden on families.
Families overwhelmingly report distinct and painful feelings regarding the Districts implications
that families are responsible for requesting assistance from volunteers for meeting requirements
of 504 or IEP plans for their students with disabilities. These volunteers may have varying levels
of education and acceptance regarding students with disabilities. Furthermore, families report
that they will feel stigmatized if necessary accommodations for students with disabilities are seen
as the straw that broke the camels back and result in either programs either closing due to lack
of funding or organizations having to prove that their students needs are an undue burden for an
organization. Parents should not be put in the difficult position of attempting to educate other
volunteers as well as having the burden of attempting enforcement through avenues that the
District has failed to delineate.

9. The proposed District procedure furthers inequities.
The District already struggles with equitable access, particularly between south end and north
end schools. Federal funds and levy dollars provide more assistance for south end schools, but
this assistance tends to be focused on programs with an academic focus, leaving south end
schools lacking in activities which may have more of a nonacademic focus. Requiring those
volunteer programs in the south end to take on the burdens of the proposed District procedure
8

would result in further inequities in terms of distribution of afterschool activities which may have
more of a nonacademic focus as well as increase the inequitable financial impact.

10. The Districts assertions and proposed procedure are inadequately researched.
The District asserts that it has performed adequate research on federal disabilities law by
consulting with lawyers in two districts, both of whom formerly worked in Seattle. The District
admits that one of these districts, Tacoma, bears very little resemblance to Seattle in terms of
how its afterschool programs are funded. This is a notable lack of depth and breadth of research
which we can only view as inadequate. Further, in an email dated February 6, 2013, Mr. English,
who wrote Districts draft paper, admits that he is no expert in disability law. We hold that the
draft paper makes assertions that are not sufficiently researched about federal law, content of
IEPs, whether programs would be able to sustain additional costs, and how other districts
comply with federal law.

Suggestions:
1. We ask the District to re-read SEAACs position paper on First Class Citizenship for
Students with Disabilties.
2. We believe that the District should include our concerns in a letter to the Office of Civil
Rights requesting technical assistance on the matter of who is responsible for provision of
services that afford access and nondiscrimination to students with disabilities in
afterschool services.
3. The District is also encouraged to discuss this issue with the Governors Office of the
Education Ombudsman.
4. Further, we believe that we should be involved in any further discussions of this issue
with other entities.
5. Further work on Superintendents Procedure 2460 is necessary to reflect the final
understanding on this issue.
We believe that this issue is an important one, both in terms of changing the Districts culture
around disabilities as well as providing access to students with disabilities.
We look forward to working with this District on this important issue in the future.
Sincerely,

Mary V. Griffin Lauren Feaux Anne E. Sheeran