IN THE MATTER OF PRINCE GEORGE'S COUNTY PUBLIC SCHOOLS,
Docket No. 97-29-CR
Civil Rights Proceeding
Appearances: Andrew W. Nussbaum, Esq., Greenbelt, Md., for the Respondents
Seksan Cucukow, Esq. and Lee A Nell, Esq., Philadelphia, Pa., for the Office for
Civil Rights, U.S. Department of Education
Before: Judge Allan C. Lewis
This is an action to terminate the continued eligibility of Prince George's County Public Schools
(District) to receive or apply for Federal financial assistance from the U.S. Department of
Education. It was instituted as a result of a determination by the Assistant Secretary of
Education for Civil Rights that District violated Section 504 of the Rehabilitation Act of 1973, as
amended, (29 U.S.C. § 701 et. seq.) when it denied a request by RT, a student with an
educationally related disability, to participate in an after school day care program at her
neighborhood elementary school. Based upon the facts and conclusions of law, infra, the
determination of the Assistant Secretary of Education for Civil Rights is upheld in part.
Since 1987, District has operated a program which provides day care for elementary students in
their schools before and after regular school hours.See footnote 11 The program was available at any
elementary school which had at least 20 to 30 children whose parents or guardians were willing
to participate and pay a reasonable fee to cover the out-of-pocket costs and expenses of the
program such as the salaries of the staff and supplies.See footnote 22 The fee was identical for each
participant and did not vary from school to school. During the school years 1995-96 and 1996-
97, District had 121 elementary schools and 8 special education centers for elementary age
students with educationally related disabilities. Of these schools, the day care program was
available in 37 schools for 1995-96 and 39 schools for 1996-97, none of which were the special
education centers. The day care programs were conducted on the premises of the elementary
schools, except for three schools which were close in proximity and shared a program that
utilized the nearby Challenger Instructional Center.See footnote 33
Morning day care was available between 7:00 a.m. and the beginning of the school day which
ranged between 8:00 a.m. and 9:35 a.m. depending on the particular elementary school.See footnote 44 After
school day care was available following dismissal from school, which varied between 2:15 p.m.
and 3:45 p.m., and 6:00 p.m. Parents were responsible for transporting their children to the care
program in the morning and to their residence after the close of the day care program.
In general, a day care program was open to students who resided in the attendance area of the
school and were enrolled at the school. Transfer students were not eligible. In addition, District
maintained various elementary schools designated as magnet schools as the result of
a desegregation order. The magnet schools had programs designed to attract students from
outside their attendance area. Pursuant to the general rule of eligibility, students who resided
within the attendance area of a magnet school could attend the day care program at their school if
there was one. The students, who lived outside the attendance area of the magnet school, were
not eligible to participate in the day care program at their magnet school or their local elementary
The general rule of eligibility was modified, however, for students who were involuntarily
bussed to another elementary school in order to comply with the desegregation order. In this
circumstance, the bussed students were considered as enrolled and residing in the attendance area
of the school to which they were bussed. Hence, these students were only eligible to participate
in the day care program at the school which they attended, if there was one, and were ineligible
to participate in the day care program at their local neighborhood school.
District had 8 special education centers in which students with educationally related problems
were instructed. The geographic attendance area for a special education center was substantially
larger than the attendance area for a regular elementary school. The enrollments in the special
education centers were uniformly smaller that the regular elementary schools. Like a regular
elementary school, a day care program was available at these centers if provided there was a
sufficient parental interest. Since the inception of the program, however, none of the special
education centers has had a day care program.
In some instances, even the special education centers cannot provide the appropriate education
services for a student. In this circumstance, the student was assigned to and educated at a private
school at public expense. Under the rules of the day care program, a program may not be offered
at a private school. Hence, these students were precluded from participating in the day care
program at their private schools and at their local elementary schools.
During the 1994-95 school year, RT, a student with an educationally related disability, attended
one of the special education centers operated by District. She was placed in the Chapel Forge
Special Center by District because Kingsford, the neighborhood elementary school within her
attendance area, could not provide an appropriate educational program. Shortly before the school
year began, RT's parents sought her admission into the afternoon aspect of the before and after
school day care program at Kingsford. The Deputy Superintendent of District denied her
admission on the ground that she was enrolled in the special education center, not Kingsford,
and, therefore, was not eligible to participate in the Kingsford program. RT's parents appealed
this decision and District denied the appeal.
In the 1995-96 school year, RT was assigned and enrolled by District in a private day school
which offered special educational and related aids and services necessary to afford her an
appropriate education. The school began at 9:15 a.m. and ended at 3:00 p.m. RT's bus ride to
and from school was approximately 60 minutes, while a direct trip was approximately 25
minutes. Once again, RT sought admission into the afternoon aspect of the day care program at
Kingsford and was denied. She was not eligible to participate in the program at Kingsford due to
the enrollment rule. In addition, the rules of the program prohibited a day care program at a
Prior to October 30, 1996, the Office for Civil Rights of the U.S. Department of Education
(OCR) notified District that its enrollment policy resulted in the exclusion of students with
disabilities from participation in the program and, as such, it constituted a violation of Section
504 of the Rehabilitation Act of 1973, as amended. OCR sought voluntary compliance by
District which was unsuccessful. A formal letter of findings was issued on November 8, 1996,
and a notice of opportunity for a hearing was filed with the Office of Administrative Law Judges
on March 18, 1997.
Section 504 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. § 794 (a) (1990))
prohibits programs receiving federal financial assistance from discriminating against an
individual with a disability solely because of that disability--
The parties agree that there is no dispute that District is the recipient of Federal assistance and
that RT was a handicapped or disabled person due to an educationally related disability and,
therefore, was appropriately assigned to a special education center and later to a private school.
The present controversy focuses on whether RT was an otherwise qualified individual and
whether RT was excluded from participating in the day care program solely because of her
disability.See footnote 66
The Court defined an otherwise qualified individual as one who is able to meet all of a
program's requirements in spite of his handicap. Southeastern Community College v. Davis,
442 U.S. 397, 406 (1979). This proposition was not applied literally, rather, it was interpreted to
mean that an individual with a disability need only meet a program's necessary or essential
requirements. 34 C.F.R. § 104.3(k)(4); Simon v. St. Louis County, 656 F.2d 316, 321 (8th Cir.
1981), cert. denied, 455 U.S. 976 (1982). Even though an individual with a disability cannot
meet the essential requirements of a program, he or she is otherwise qualified if reasonable
accommodations would enable him or her to satisfy the requirements. Reasonable
accommodations do not require an institution to lower or to effect substantial modifications of
standards to accommodate a disabled person. Davis, 442 U.S. at 413. Moreover,
accommodations are not reasonable if they impose undue financial and administrative burdens
or if they require a fundamental alteration in the nature of [the] program. Pottgen v. Missouri
State High School Activities Association, 40 F.3d 926, 930 (8th Cir. 1994) (quoting School Bd.
of Nassau County v. Arline, 480 U.S. 273, 287 n. 17 (1987)).
OCR argues that RT was qualified to attend her local elementary school, Kingsford, which had a
day care program because she lived within the attendance area of this school. To be qualified
to receive public schooling, according to OCR, one need be only a person of any age during
which it is mandatory under state law to provide such services. 34 C.F.R. § 104.3(k)(2)(ii).
(M.Br. at 10-11.) Since RT was placed by District for educational purposes in a special
education center and, subsequently, in a private school due to the insufficient educational
resources at Kingsford, she was thereby denied her right to participate in the day care program at
Kingsford. In OCR's view, this constituted categorical discrimination due to her disabilities.
In addition, OCR maintains that a modification to the rules of the day care program which would
permit educationally related disabled students to attend the program at their local elementary
school would not result in a fundamental alteration of the service. OCR notes that the nature of
the program would not be affected in terms of location, staff, hours of operation, or content. The
only modification caused by the admittance of RT into the program would be the location at
which RT boards her school bus in the morning to commute to her special education center or
private school and disembarks from her bus in the afternoon. Currently, RT embarks and
disembarks at her residence and, if she were participating in the day care program, this would
occur, instead, at the nearby Kingsford Elementary School.See footnote 77
District counters that its enrollment eligibility rule was a neutral rule, which was neutrally
applied. As such, there was no categorical denial of an equal opportunity to participate in the
day care program because the students with disabilities were not excluded from the program
solely due to their disabilities, but rather, solely due to where they attended school. M.Br. at 1.
Moreover, District maintains that the eligibility rule was devised in order to avoid transportation
and timing issues and that its waiver would create significant administrative burdens and
District argues that three courts of appeals have addressed a somewhat analogous issue, namely
whether age or semester eligibility standards in high school sports may be waived for disabled
students who are still attending high school due to an educationally related disabling condition
which, in turn, slowed their progress through school.
In Sandison v. Michigan High School Athletic Association, 64 F.3d 1026 (6th Cir.1995), the
court found that an age limitation of 19 was a neutral rule which was neutrally applied. Students
were disqualified because they turned 19, not solely by reason of their educationally related
disability. Sandison, along with Pottgen and McPherson v. Michigan School Athletic Ass'n, 119
F.3d 453 (6th Cir. 1997), addressed the age or semester limitation in the context of the
accommodation issue. Sandison held that Section 504 does not require affirmative action,
substantial changes such as a fundamental alteration in the nature of the program, or changes
imposing undue financial and administrative burdens. 64 F.3d, at 1031 (quoting Davis, 442
U.S., at 410, 411 n.10, 412.). Rather, Section 504 demands even-handed treatment of otherwise
qualified handicapped persons. Id.
In Pottgen, the Eighth Circuit determined that the nature of the age limitation did not lend itself
to any accommodation other than a waiver of the rule. In this regard, the Eight Circuit held that
a waiver was not a reasonable accommodation as waiving an essential eligibility standard would
constitute a fundamental alteration in the nature of the baseball program. 40 F.3d at 930.
McPherson dealt with the eight semester rule which limited a student's participation in high
school sports to eight semesters. Like the age limitation rule, the purpose of the semester rule
was to create a fair sense of competition by limiting the level of athletic experience and skill of
the players in order to create a more even playing field for the competitors. Id., at 456. In this
case, waivers of the rule had been granted in the past where the waiver was applied for prior to
the expiration of the eight semesters and in cases in which the students had been physically
unable to attend school for a medical reason or had been limited to taking a small number of
courses, which resulted in attending high school more than eight semesters. Id,
The Sixth Circuit held that a waiver would not constitute a reasonable accommodation since it
would inject older and more physically mature students into the competition and, therefore,
would work a fundamental alteration of the high school sports program. Id. at 462. While
McPherson argued that there would be no fundamental alteration of the program due to his
average height, weight, and skill level, the court rejected this argument by focusing on the
broader picture. In its view, a mandate which required the association to develop, analyze, and
review the physical attributes and skills of all learning disabled students who remain in school
more than eight semesters would impose an immense financial and administrative burden on the
association as well as likely lead to widespread abuse of the rule by schools through the red-
shirting of student athletes. Id, at 463. In its view, [h]aving one student who is unfairly
advantaged may be problematic, but having increasing numbers of such students obviously runs
the risk of irrevocable altering the nature of high-school sports. Id. at 462-63.
RT sought admission into the Kingsford day care program -- once while enrolled in a special
education center and once while enrolled in a private school. The alleged discrimination under
Section 504 will be addressed, first, in the context of the private school enrollment.
District's enrollment rule -- that a student enrolled in the elementary school in his or her
attendance area may only participate in a day care program at that school provided there is
sufficient parental interest -- is not a neutral rule as applied. The educationally disabled students
assigned to private schools are members of the only class of students which was denied an
opportunity to be eligible to participate in the day care program. It was denied this opportunity
while the other four categories of students, including the educationally related disabled students
who attended the eight special education centers, possessed either the opportunity to be eligible
to participate in the program or had voluntarily waived this opportunity.See footnote 88 Hence,
discrimination against this class is readily apparent and, unlike the age limitation cases of
Sandison and Pottgen, the basis of such discrimination is due solely to the disabilities of the
members of this class. Such discrimination violates Section 504. New Mexico Ass'n for
Retarded Citizens v. New Mexico, 678 F.2d 847, 853 (10th Cir. 1982) (federally-funded
education system may be found in violation of Section 504 where the entity's practices preclude
the handicapped from obtaining system benefits realized by the non-handicapped.).
District maintains that the eligibility enrollment rule was devised in order to avoid transportation
and timing issues and that its waiver would not constitute a reasonable accommodation because
it would create significant administrative burdens and difficulties.See footnote 99 The rationale for the
eligibility rule was explained by the Deputy Superintendent of District as follows--
A waiver of the enrollment rule is not unusual. District waived this rule in order to permit a
significant number of its students, who are bussed under the desegregation order, an opportunity
to be eligible to participate in the day care program. The waiver was effected through a rule
modification which treated these students as residing within the attendance area of the school to
which they were bussed rather than their local school attendance area. District also waived its
same school requirement and thereby incurred transportation costs contrary to its expressed
policy, when it permitted three elementary schools to participate in a combined day care program
that was housed in a separate facility, the Challenger Instructional Center. While this facility
was located immediately adjacent to two of the schools, the participants from the Langley
Park/McCormick Elementary school were bussed between the facility and the school.See footnote 1010 These
circumstances illustrate District's flexible approach toward the enrollment rule when dealing
with the needs of its students.
There is no merit to District's contention that providing transportation between the enrollment
school and the program school would be excessively burdensome or costly. Inasmuch as District
is obligated to provide daily bus service for an educationally related disabled student between his
or her residence and the private school, there would be little, if any, additional expense in
altering a student's pick-up and drop-off point from the student's residence to his or her local
elementary school. Thus, the provision of transportation in this instance is cost neutral and,
hence, not a factor.
Similarly, there is little merit to District's argument that substantial confusion and disruption
may arise at a school's drop off and pick up point for the busses due to busses discharging
students in the morning at the same time that busses are picking up educationally related disabled
day care students to transport them to their private schools. This argument lacks evidentiary
support and, in any event, it is clearly not a significant, major problem given the potential
number of educationally related disabled students who may participate in the day care
program.See footnote 1111
District has a point that its program may incur additional personnel costs if the educationally
related disabled students in private school are permitted the opportunity to be eligible to
participate in the day care program. Additional personnel may be necessary in order to escort
these students to or from their busses or to supervise these students if a gap period exists in their
schedules, i.e. a period of time during which day care may be provided for an educationally
related disabled student while the other students in the program are attending school. Again,
these costs, if they are incurred, will be minimal because very few additional students will
participate in the program as a result of this decision.
Based upon the above, it is determined that RT was an otherwise qualified individual and that
she, as a student attending a private school, was excluded from participating in the day care
program solely by reason of her disability. In this circumstance, a modification of the enrollment
rule which permits educationally related disabled students attending private schools to have the
opportunity to be eligible to participate in their local elementary school's day care problem is
appropriate and warranted.See footnote 1212
Lastly, OCR argues that educationally related disabled students who attend the eight special
education centers should be permitted to participate in the day care program at their local
elementary schools. Each special education center has an attendance area and a day care
program may be initiated if there is sufficient parental interest. Sufficient parental interest is
defined, for purposes of both the special education centers and the regular elementary schools, as
the prospective participation of at least 20-30 students at the school. Thus, unlike the private
school students, the educationally related disabled students who attend the special education
centers have the opportunity to be eligible to participate in a day care program.
While OCR acknowledges that the special education center students have this opportunity, it
argues that the opportunity is essentially a mythical one and, therefore, these students should be
entitled to the same opportunity for participation in the day care program as that given the
educationally related disabled students who attend the private schools. In support of this
position, OCR notes that none of the special education centers has had a program since the
inception of the day care program in 1987. This contrasts with a participation rate of thirty to
thirty-two percent of the regular elementary schools in 1995 and 1996. The eight special
education centers serve larger geographical areas than the 121 regular elementary schools and,
therefore, the time and distance to and from school are, on average, longer in duration and
distance than the duration and distance for a regular student. Lastly, the enrollment in the special
education centers is uniformly smaller than the enrollment in the elementary schools.
Based on these facts, OCR argues that the smaller pool of students and the longer commuting
distances for parents between their residences or work places and the special education schools,
coupled with the absence of any day care program in the past, proves that the opportunity to
participate in a day care program is virtually nonexistent. Therefore, OCR maintains that these
students should be allowed the opportunity to be eligible to participate in the day care program in
their local school, if there is such a program.
District responds, in effect, that over 80 regular elementary schools do not have a program.
Hence, there is nothing unusual if a school does not have a program. It adds that the parties'
stipulation of facts offers no indication to suggest why no special education center has had a
sufficient number of parental requests to establish such a program. District urges that, based on
this record, OCR has not proved its case.
As to this class of students, the tribunal agrees with District. The few stipulated facts and any
reasonable inferences therefrom fall substantially short of establishing a prima facie case that the
students assigned to the special education centers do not have an equal opportunity to be eligible
to participate in a day care program as the students who attend the regular elementary schools.
Accordingly, the tribunal rejects OCR's position regarding the educationally related disabled
students who attend the special education centers.
Based upon the foregoing findings of fact and conclusions of law, it is HEREBY ORDERED
that the continued eligibility of Prince George's County Public Schools, directly or indirectly, to
receive or apply for Federal financial assistance administered by the United States Department of
Education shall be terminated.
Allan C. Lewis
Chief Administrative Law Judge
Issued: March 17, 1998
Andrew W. Nussbaum, Esq.
Reichelt, Nussbaum, LaPlaca & Miller
P.O. Box 627
Greenbelt, Maryland 20768-0627
Seksan Cucukow, Esq.
U.S. Department of Education
Office for Civil Rights
3535 Market Street
Philadelphia, Pennsylvania 19104-3326
A courtesy copy was also sent by regular mail to--
JoAnn Goedert, Esq.
Assistant Attorney General
State of Maryland
Office of the Attorney General
200 Saint Paul Place
Baltimore, Maryland 21202-2021
In addition, District's view that the educationally disabled students voluntarily chose to attend the private schools is misplaced. District elected not to provide these necessary services in its regular elementary schools or in its special education centers. Hence, in this context, attendance at private schools by these students was not voluntary.