Failure To Follow Guidance Letter Does Not Necessarily Create Liability

Author: Omer A. Khan, Attorney at Law         


On November 18, 2019, the U.S. District Court in the Eastern District of California granted a Local Educational Agency’s (LEA) summary judgment motion because the teenage plaintiff could not establish that the school violated Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. The court granted the motion based on its holding that guidance issued by administrative agencies does not hold the weight of regulations as contemplated by Section 504 and the ADA.


Plaintiff was a freshman at Paradise High School and qualified for a Section 504 plan to accommodate his individual education needs in light of his Attention Deficit Disorder (ADD). On August 28, 2015, Plaintiff was assaulted at a high school football game where another student punched Plaintiff in the head more than once, breaking his nose and rendering him unconscious.

Plaintiff sued the school and the Paradise Unified School District, seeking damages under Section 504 and the ADA. Plaintiff alleged that the school failed to adhere to guidance issued by the U.S. Department of Education called the “Dear Colleague Letters” which recommended supervision at extracurricular events and monitoring bullying incidents involving students with disabilities.


In order for Plaintiff to prevail on his claim,  he was required to establish that 1) he was a qualified individual with a disability, 2) he was denied a reasonable accommodation that he needed in order to enjoy meaningful access to the benefits of public services, and 3) the program providing the benefit receives federal financial assistance. After making the initial showing, he also was required to demonstrate that the school demonstrated deliberate indifference to Plaintiff’s needs.

Plaintiff argued that he was denied a reasonable accommodation because the school “failed to comply with an applicable regulation.” As support, Plaintiff offered a “Dear Colleague” letter’s recommendation that LEAs provide adequate supervision at extracurricular events and monitor bullying incidents involving students with disabilities. The court disagreed, saying that the “Dear Colleague” letters were meant as aspirational guidance and were not the product of a “rigorous process” similar to an administrative regulation. The court continued that since the school had no actual knowledge that Plaintiff was bullied, the school could not be held to have denied Plaintiff a reasonable accommodation under the law.

Additionally, the court also noted that Plaintiff could not satisfy the requirement to show the school demonstrated deliberate indifference to Plaintiff’s needs. Since the court already concluded that the “Dear Colleague” letters did not carry the weight of administrative regulations, Plaintiff could not demonstrate deliberate indifference by way of failing to provide an accommodation “required by statute or regulation.” The court concluded that since Plaintiff failed to show that the school intentionally reneged on its responsibility to provide Plaintiff with a reasonable accommodation, Plaintiff could not show that the school acted with deliberate indifference to Plaintiff’s needs.


Administrative agencies such as the U.S. Department of Education frequently publish guidance such as the “Dear Colleague” letters to help LEAs understand their obligations to provide accommodations for students with disabilities. Although it is recommended that LEAs follow such guidance as closely as practical, this case provides the proposition that failing to adhere to such guidance will not likely result in a de facto violation of Section 504 and the ADA as long as there are reasonable accommodations provided in another manner. LEAs should continue to monitor guidelines issued by administrative agencies, but this ruling provides that failing to follow such advice letters does not necessarily amount to a legal violation.



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