by Robert W. Steele, Jr. (Winter 2019)
The United States Court of Appeals for the Seventh Circuit recently affirmed a trial court ruling that neither Title II of the Americans with Disabilities Act (ADA) nor the Rehabilitation Act of 1973 requires a school district to permit a student who resides outside of the district to continue attending school within the district as a reasonable accommodation. H.P. v. Naperville Community Unit School District No. 203, 910 F.3d 957 (7th Cir. 2018).
H.P. resided with her mother within District 203 and attended Naperville Central High School (NCHS) during her freshman and sophomore years. Her mother tragically died in May 2016, at the end of her sophomore year. At that time, the student began to reside with her father in Lisle outside of the District’s boundaries. District 203’s policy requires students to be residents of the District in order to attend one of its schools. Yet, because the District was unaware of H.P.’s change in residency, she continued to attend school at NCHS through her junior year. Before her senior year, District 203 learned that H.P. was living outside of its boundaries in violation of its student residence requirement. Her father requested permission for her to complete her senior year at NCHS, but the District denied the request.
The father made a second request for a waiver of the residence requirement, claiming it was necessary as an accommodation for H.P.’s disability under the ADA and the Rehabilitation Act. After her parents’ divorce in 2008, H.P. experienced anxiety, depression, sleep disturbances, and seizures. In 2009, she was diagnosed with epilepsy, and in early 2014 she was diagnosed with Major Depressive Disorder, Generalized Anxiety Disorder, and a seizure disorder. She was found eligible for special education and District 203 prepared an Individualized Education Program for her at the beginning of her freshman year. Yet, her family subsequently revoked consent for special education services and H.P. was a general education student for the remainder of her time at NCHS.
After District 203 denied her father’s second request for a waiver of the residence requirement. H.P. enrolled at Downers Grove North High School for her senior year. Although she ultimately graduated from there, H.P. was increasingly despondent about being forced to leave NCHS. She was diagnosed with Persistent Depressive Disorder and was prescribed certain anti-depressants.
H.P., through her father, filed an action against the District for claims of discrimination under the ADA and the Rehabilitation Act. The lawsuit alleged that District 203 should have waived its residency requirement and allowed H.P. to attend NCHS even though she was no longer a resident of District 203, According to the plaintiffs, the District’s failure to waive the residency requirement constituted a failure to provide the student with a reasonable accommodation. The trial court and Seventh Circuit court disagreed.
Whether H.P. even had a disability under either statute was disputed by the parties. Yet, the courts jumped straight to whether the student, assuming she was disabled, could prove causation under either statute. To prove causation, H.P. would have to prove that ‘but for’ her disability, she would have been able to access the services available within District 203. She could not prove such causation since District 203’s residency requirement would also preclude an identically situated person without a disability from attending NCHS.
The trial court cited C.S. v. Ohio High School Athletic Association, 2015 WL 4575217, as factually similar to this case. In C.S., a student lived with his parents in Kentucky but attended a school in Ohio for “better educational services to accommodate [his] disability.” The student and his parents sought to have him play soccer in Ohio, but the Ohio state athletic association’s rules required the student’s parents to reside in Ohio.
Relying on Seventh Circuit Appellate court opinions, the C.S. court concluded that the association’s residency rule rendered the student ineligible to play in the state, even if he was not disabled. Additionally, similar services accommodating his disability were also available at a Kentucky school. Due to the factual similarities, the trial court in H.P. adopted much of the analysis from C.S.
On appeal, the Seventh Circuit principally agreed with the lower court in holding that the student failed to establish causation. To the Seventh Circuit, “the only reason H.P. could not attend NCHS is because she resided outside the District – a fact unrelated to her disability.”
The H.P. decision does not mean that a school district never needs to modify a policy to accommodate a student with a disability. Circumstances do exist that would require a school district to adjust an established policy in order to ensure equal access to a student with a disability. For example, a policy that prevents students from eating or drinking in class would need to be waived for a student with a medical condition requiring sustenance during class time. Should you receive a request for a waiver of a board policy due to a student’s disability, contact an attorney at Ottosen Britz to assist you in analyzing the situation under the ADA, the Rehabilitation Act, and other applicable laws.