Ratwik, Roszak & Maloney, P.A.

300 U.S. Trust Building

730 Second Avenue South
Minneapolis, Minnesota 55402
(612) 339-0060
Fax (612) 339-0038
www.ratwiklaw. com
E Q U I T Y IN GRADI NG, TRANSCRI PTS, RE PORT CARDS, AND T E S T I NG
ACCOMMODATI ONS:
WHAT ARE A SCHOOL DI ST RI CT ' S L E G AL OBLI GATI ONS?
2012 MASE Leadership Conference
October 26, 2012
Amy E . Mace
aem(%ratwiklaw.com
Even though the school year has just begun, it seems like graduation is already right around the
corner. Like other parents faced with graduating students, parents of IDEA eligible students
are concerned about students' wellbeing after high school. Accordingly, schools are often
faced with demands regarding modified grades, transcripts, class rank, and honor roll
deterrninations. Today's presentation wi l l review the legal standards that govern these areas
and provide guidance on how schools should respond to such requests.
I . GRADI NG MODI FI CATI ONS
A. Failure to Include Grading Modifications in the I E P Could be Disability
Discrimination. The OCR has opined that special education students are
"presumed to be assessed and graded as per the school's policies." Letter to
NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of
interesting and important legal developments. While current as of the date of presentation, the
information given today may be superseded by court decisions and legislative amendments. We
cannot render legal advice without an awareness and analysis of the facts of a particular situation. I f
you have questions about the application of concepts discussed in the presentation or addressed i n this
outline, you should consult your legal counsel. 2012 Ratwik, Roszak & Maloney, P.A.
Runkel, 25 IDELR 387 (OCR 1996). The OCR further stated that a different
grading system (in general education classes) for students with disabilities is only
allowed i f the student's IEP team determines that the system would address the
student's individual needs. Id.
1. At least one federal court has relied on Letter to Runkel to conclude that a
school district violated the IDEA, Section 504, and the Americans with
Disabilities Act ( "ADA") , by assigning the student a pass/fail grading
system when that system was not described in the student's IEP. D.E.R. v.
Board ofEduc. of Borough of Ramsey, 2005 WL 11119 AA (D. N.J. 2005)
(unpublished). '
2. A second federal court determined that Letter to Runkel was entitled to a
high level of deference. Hornstine v, Township of Moorestown, 263
F.Supp.2d 887 (D. NJ. 2003).
a. The Hornstine court specifically found that Letter to Runkel stood
for the proposition that a school district could not retroactively alter
a policy that only permitted a single valedictorian to allow for
multiple valedictorians when the person eligible to be the single
valedictorian was a special education student and the person who (
would be nominated as the co-valedictorian was not. 263
F.Supp.2dat908.
3. The OCR has concluded that a school did not discrirninate against a
student by using a different grading system than the one used wi th non-
disabled students where the student's grading methodology was
determined by the IEP team on an individualized basis and was therefore
not the result of systematic different treatment on the basis of disability.
North Hunterdon/Voorhees Regional (NJ) High Sch. Dist., 25 I DELR 165
(OCR, May 24, 1996).
I I . TRANSCRI PTS
A. School Districts May Not Identify a Class as "Special Education" on a
Student's Transcript. The OCR has found that including the label "special
education" on a transcript violates Section 504. Letter to Runkel.
B. Schools May be Able to Include Facially Neutral Labels on a Transcript. In
Letter to Runkel, the OCR clarified that a school district can use labels such as
"independent study" or "modified curriculum" on disabled students' transcripts i f
these terms are also used in other courses besides special education, such as the
gifted and talented program. The OCR has reasoned that transcript notations
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regarding enrollment in different classes, course content, or curriculum by
disabled students would be consistent with similar transcript notations for classes
such as advanced placement, honors, and basic and remedial instruction, which,
are provided for both disabled and nondisabled students. In re: Report Cards
and Transcripts for Students with Disabilities, 51 IDELR 50 (OCR 2008).
Any term used cannot specifically disclose that a student has a disability, cannot
be used for the purpose of identifying programs for students with disabilities, and
must be consistent with the purpose of a transcript. Id.
1. Regardless of the specific language, a label or symbol may be viewed as
discriminatory i f it is used solely for the purposes of identifying special
education courses, activities, or students.
2. OCR has cautioned that whether a particular label is proper depends on
many factors, including regional practices.
3. For example, while a large district that offers gifted and talented
programs, independent study opportunities, and other "modified" classes,
may be able to use the label "modified curriculum" on students'
transcripts, a smaller district that does not offer many non-special
education "modified" courses, may be engaged in a discriminatory
practice i f it uses the same label.
C. Transcripts May Not Include Notations to Show that a Student Received an
Accommodation in a General Education Class.
1. The OCR reasoned that the use of accommodations does not reflect a
student's academic credentials or achievement, but does identify the
student as having a disability, and thus, it would be a violation of the
applicable law for a student's transcript to show that he/she received an
accommodation.
I I I . RE PORT CARDS
A. Report Cards May Identify Special Education Services. The OCR reasoned
that report cards are provided to parents to indicate their child's progress or level
of achievement in specific classes, course content, or curriculum. In re: Report
Cards and Transcripts for Students with Disabilities, 51 IDELR 50 (OCR 2008).
Thus, the OCR concluded that it was permissible for a report card to note that a
student is receiving special education or related services, as long as the report
card informs parents about their child's progress or level of achievement in
specific classes, course content, or curriculum. Id. However, the mere
designation that a student has an IEP or is receiving special education services
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without any meaningful explanation of the student's progress, such as a grade or
other evaluative standard, would be inconsistent with applicable laws. Id.
B. Report Cards May Distinguish between Special Education Classes and
General Education Classes. The OCR reasoned that school districts typically
distinguish between general education classes and classes such as advanced
placement, honors, or remedial classes, and thus, making similar distinctions on
report cards related to special education classes would be permissible. In re:
Report Cards and Transcripts for Students with Disabilities, 51 IDELR 50 (OCR
2008). For example, the OCR stated that a report card could note that a student's
progress was measured based on a modified education curriculum or could note
that distinction by using an asterisk or other symbol meant to reference the
modified or alterative education curriculum as long as the statements on the
report card provide an explanation of the student's progress that is as informative
and effective as the explanation provided for nondisabled students. Id.
C. Report Cards May Include Notations to Show that a Student Received an
Accommodation in the Class. The OCR noted that, in general,
accommodations do not affect course content or curriculum. In re: Report
Cards and Transcripts for Students with Disabilities, 51 IDELR 50 (OCR 2008).
The OCR concluded that to the extent the use of the notations, asterisks,
symbols, or other coding to indicate that a student received an accommodation is
part of the information given to the parents about the student's progress or level
of achievement in specific classes, the practice is permissible. Id.
I V. HONOR RO L L AND CLASS RANK
A. The Honor Roll Must be Accessible to Students with Disabilities. According
to the OCR, it is a "clear" violation of Section 504 and the ADA for a school
district to categorically restrict a student's access to the honor roll based on either
the student's disability status or his or her enrollment in special education
courses. Letter to Runkel.
B. School Districts May Place Objective Restrictions on Honor Roll Eligibility
or Receipt of Class Rank. The OCR has opined that school districts may use
objective criteria related to its specific educational program to determine
placement on the honor roll or entitlement to a class ranking. Letter to lakes 305
IDELR 50 (OCR 1988).
1. For example, a school district can establish weighted criteria for honor roll
eligibility such as assigning a higher "point value" for more advance
classes. Letter to Runkel
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a. The weighted criteria system must be fair, simple, and easy to
understand. Id.
2. Similarly, a school may appoint a set of "core courses" that students must
take in order to be eligible to participate in the. honor roll or receive a class
rank. Id.
a. As an example, a school district could require students to receive a
passing grade i n Algebra before being eligible for the honor roll.
3. The OCR has also found that schools can premise honor roll eligibility on
performing at or above grade level or meeting certain grade requirements.
See Prince William County (VA) Sch. Div., 25 IDELR 538 (OCR 1996).
The "fact that all students may not be able to perform at a higher academic
level," OCR has opined, "is not determinative [of a violation], as long as
all students and not only those with disabilities are similarly affected, and
all are eligible to take these subjects, i f desired." Letter to Runkel.
V. STATEWI DE T E S T I NG
A. MCA/ MCA Modified/Minnesota Test of Academic Skills (MTAS)
B. Graduation-Required Assessment for Diploma (GRAD)
1. Testing students with I EPs or Section 504 plans
a. The Minnesota Rule governing graduation standards provides
that i n regard to the GRAD, all students must be tested under
standard conditions as specified by the developer of the test
except those students whose IEPs or section 504 plans follow
the requirements set forth below. Minn. R. 3501.1190, subp. 2.
b. Decisions regarding appropriate testing conditions, including a
decision to provide accommodations for a student, must be
made by the IEP team or through the section 504
accommodation plan process and must be reviewed annually
Id.
2. IEP/Section 504 Plan Must State whether GRAD will be taken
with accommodations or modified.
a. Rule 3501.1190, subpart 1, provides that the IEP or Section
504 plan must identify one of the following decisions for each
subject area of the GRAD:
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i. the student is expected to achieve the statewide standard
with or without testing accommodations, resulting i n a
"pass" or "p" notation on the record when achieving a
passing score; or
ii. the student is expected to achieve the statewide standard at
an individually modified level of difficulty, resulting i n a
"pass" or "p" notation on the record when achieving the
modified level. A Minnesota alternate assessment must be
used when an IEP team chooses to replace the GRAD.
Adoption of modifications for a student must occur
concurrently with the adoption of transition goals and
objectives. The student's IEP or section 504 plan must
define an appropriate assessment of the statewide standard
at a modified level of difficulty. Achievement of the
individually modified standard shall be certified only
through documented student performance of the defined
assessment.
VI . DI PLOMA
A. Special Education Students May Earn a Diploma Without Completing
Regularly Required Courses. Upon completion of secondary school or the
equivalent, a pupil with a disability who satisfactorily attains the objectives i n his
or her IEP must be granted a high school diploma identical to those students
without a disability. Minn. Stat. 125A.04.
VI I . E X T RACU RRI CU LAR ACT I V I T I E S
A. Minnesota State High School League (MSHSL) Bylaw 108.00. A special
education student can meet the scholastic eligibility requirement i f the student is
making satisfactory progress toward the student's IEP. An exception to
scholastic eligibility is i f the school principal and personnel from an agency such
as a residential treatment center, mental health clinic, county welfare department
or family service agency diagnose the psychological needs of a student and
jointly determine that effective treatment for the student includes the option of
participation in League activities.
B. Ineligibility for violation of MSHSL Rules. The IEP team should determine
whether a student is ineligible to participate i n extra-curricular activities because
of a rule violation and should document its decision by sending the parents a
prior written notice.
RRM: #169278
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