Band Director's Unilateral Decision Denying Student with a Disability Full Participation in Marching Band Violates 504

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     An Arizona high school student with Down syndrome had an IEP calling for "integration with regular peers as much as possible" and participation in Marching Band. Thus, the student played the drum in the Marching Band at football games in the fall semester. Later, the Marching Band, including the student with a disability, went on a field trip to Disneyland. The Band Director, however, on her own, decided that the student would not be allowed to participate in a recording session at Disneyland or march in the parade with the rest of the band at Disneyland. Moreover, the Band Director decided that the  student didn't need to bring his drum and band uniform. As a result, the student was not able to participate in the band group picture taken at Disneyland.

     The band director explained that she decided the student shouldn't participate in the recording session because she knew the student couldn't sight-read music. Additionally, since he tired easily he should not march in the parade. And, finally, since he wasn't marching in the parade or participating in the recording session, he didn't need to bring his uniform or drum. Thus, he was prevented from being included in the group picture. The student's parents filed a 504 complaint with the Office for Civil Rights.

     In Marana (AZ) Unified School District, 53 IDELR 201 (OCR June 2, 2009) the Office for Civil Rights decided that: "The unilateral decision by the band director to deny the student participation in the activities associated with the Disneyland trip and to treat him differently from his non-disabled peers was...not based on the individual needs of the student." Since these decisions were unilateral and not based on the individual needs of the student, the reasons behind the decisions were not legitimate and violated Section 504.

     To resolve the issue, OCR entered into a Resolution Agreement with the school district that required the district to develop a district-wide "procedure to ensure that students with a disability are provided an opportunity to participate in school sponsored activities the same as non-disabled peers, or as appropriate for the individual needs of the student." Moreover, the district agreed to provide training to all of the high school staff regarding the requirements of 504 and the Americans with Disabilities Act. Finally, to help resolve the harm to the student and his family, the Resolution Agreement  required that the school district reimburse the student's parents for their costs associated with the Disneyland trip or allow him to fully participate in a future trip to Disneyland.