“Yes, it is true that Dr. Wipke, Superintendent, signed a Resolution Agreement as presented by OCR in March 2018. This is standard procedure in closing out a review. However, contrary to what you allege, there were no "findings" showing any violations of federal law. Hence, it is no surprise the news media didn't publish this non-story. Thus, it is not responsible to write "just think how many kids were denied 504 plans" when OCR has made no such finding, despite years of examination.”This kind of comment from school officials is expected. Fox has been sweeping this problem under the rug for nearly a decade.
On Facebook, I responded to Mr. Brazeal's comment above and documented some of the many things that didn’t make it into the March 2018 District Wide Compliance Review letter or the March 2018 Resolution Agreement.
The only reason that a district is asked to sign a Resolution Agreement is because OCR found compliance issues while conducting an investigation.
This wasn't the first time Fox signed a Resolution Agreement with OCR. The district signed one on May 1, 2009 related to the same issues based on a complaint filed in August 2008. The May 2009 Resolution Agreement was "monitored" by ED OCR from May 2009 until August 2014. In August 2014, ED OCR visited Fox to do an Early Complaint Resolution and subsequently reinstated a Section 504 plan that had been removed in September 2008.
However, Fox's 15 page Resolution Agreement clearly documents 18 action items that the district has agreed to do in order to fulfill the terms of the Resolution Agreement and become compliant with Section 504 and Title II of the Americans with Disabilities Act of 1990 (ADA). Several of the action items in the March 2018 Resolution Agreement were similar to those in the May 2009 Resolution Agreement.
Below is a paragraph from the March 2018 Resolution Agreement stating that OCR will not close the monitoring of the Agreement until OCR determines that Fox has fulfilled the terms of the agreement. Therefore, Fox is currently non-compliant.
"The District understands that OCR will not close the monitoring of this Agreement until OCR determines that the District has fulfilled the terms of this Agreement and is in compliance with: the regulation implementing Section 504 at 34 C.F.R. §§ 104.3(j), and 104.35 through 104.37; and the regulation implementing Title II at 28 C.F.R. §§ 35.104 and 35.130, which were at issue in this case."Just because a school district agrees to do things in a Resolution Agreement is no guarantee that the district will actually fulfill the terms of the agreement. Fox demonstrated that by their actions from the May 2009 Resolution Agreement.
In March 2018, Fox voluntarily agreed to resolve the Compliance Review prior to the conclusion of OCR’s investigation. It will be interesting to see how many years it takes before Fox fulfills the terms of the March 2018 Resolution Agreement.
Resolution Agreement Not Provided to School Board
Dr. Wipke did not provide a copy of the Resolution Agreement in BoardDocs for Fox's school board members to review. When I asked why not, I was informed that it was an "administrative action". Since the OCR Resolution Agreement deals with complying with federal law, our school board members should have been provided a copy of the Agreement and the Compliance Review letter as well. Having it in BoardDocs would have also made the documents available to the local community.
Resolution Agreement On ED.GOV
Even though Fox's Resolution Agreement and Compliance Review letter wasn't made available to Fox's school board members or the community, it is available to the general public on ED OCR's website. I have provided links to the documents below:
“By September 17, 2018, the District will send a notice to the parent(s)/legal guardian(s) of each District student through the U.S. Postal Service (U.S. mail), or by email, explaining the District’s obligation to conduct a Section 504 evaluation of any student who, because of disability, needs or is believed to need special education or related services to send out notices to everyone in the district.”
"This compliance review assessed whether the District discriminates on the basis of disability against students with food allergies and other health impairments such as diabetes. Specifically, the review addressed whether the District provides individualized health plans to students with food allergies and other health impairments that do not comply with the requirements of Section 504 and Title II, thereby denying those students opportunities to participate in and benefit from the District’s programs and activities that are equal to the opportunities afforded to students without disabilities."Since it was well documented that ED OCR knew that we were provided an Individualized Health Plan (IHP) instead of a Section 504 plan, it was easy to see why OCR opened a District Wide Compliance Review investigating the practice of providing IHP's instead of Section 504 plans. This pattern of practice had been happening around the country for years as I found in other Resolution Agreements and pointed out in previous articles. The Memphis City School district was caught doing the same thing and signed a Resolution Agreement with OCR in 2012.
It took OCR nearly 4 more years after the online defamatory comments scandal became public for OCR to complete their investigation and get the district to sign a Resolution Agreement. During that time, I continually checked in with OCR asking the KC Director and the Regional Enforcement Director when they planned to complete their investigation.
OCR's 8 year investigation don't seem to follow OCR’s mission statement from their website:
“The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”
You can't ensure equal access to education when it takes 8 years to investigate problems in a school district.
Students Denied 504 Plans
In my Facebook response to Mr. Brazeal, I also noted the fact that there were students who were denied Section 504 plans in the district between 2008 and 2014. Ours was one of them. My remarks about denying 504 plans are true. We don't know how many students were denied 504's because most parents don't know about Section 504. Plus parents aren't willing to battle their school district because they can't afford attorneys and because they fear retaliation from the district.
Several parents of students in our district contacted me over the years telling me that their children had been denied Section 504 plans by the district. Some of those students were eventually provided a 504 plan in 2014. That happened after the district changed law firms as well as ousted former superintendent Dianne Critchlow, fired her husband Jamie Critchlow and demoted Dan Baker, Fox's Section 504 Coordinator at the time. The Critchlow's departure and Dan Baker's demotion was related to online defamatory posts that were traced to their homes and directed at me and a couple of others in the district.
Items Not Documented By ED OCR
ED OCR was made aware of some of the students who were denied Section 504 plans but did not document that fact in the District Wide Compliance Review letter or Resolution Agreement.
OCR also didn't document the monitoring letters that they sent the district between 2009 and 2013. Those monitoring letters did not reflect well on the district as they noted the numerous times that the district failed to meet the terms of the May 2009 Resolution Agreement. OCR also failed to document any of the online postings that were traced to the homes of district administrators.
Retaliation by a school district is prohibited by Section 504 law. This is documented on the last page of Fox's District Wide Compliance Review letter:
"Recipients of federal funds are prohibited from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by federal civil rights law. Complaints alleging such retaliation may be filed with OCR. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that OCR receives such a request, it will seek to protect, to the extent provided by law, personally identifiable information that could reasonably be expected to constitute an unwarranted invasion of personal privacy if released."OCR was made aware of the online postings that were being posted on TOPIX for years. OCR was provided copies of the postings that were traced to the homes of our former superintendent and former Section 504 coordinator in 2014. OCR was also provided the comments that were posted online after the "press release" in the Post Dispatch article from August 2010 after the district "won" its Due Process Hearing.
No Monitoring Letters for Two Years During ED OCR's "monitoring" of the May 2009 Resolution Agreement, there was more than a two year lapse in their "monitoring" of the district. ED OCR didn't issue any monitoring letters to the district between December 2009 and March 2012. We asked ED OCR numerous times during that two year gap as to when they planned to send new monitoring letters to the district. We also asked as to how many years it would take before they actually enforce the agreement rather than changing the deadlines of the agreement when Fox failed to meet the deadlines that they agreed to.
Ongoing Efforts To Comply with Section 504 and Title II One very notable point in the March 2018 Resolution agreement is this statement on the first page of the Resolution Agreement:
"As part of its ongoing efforts to comply with Section 504 and Title II, the District agrees to review and, as needed, amend its Section 504 Manual and Section 504 process to ensure that the Manual and process conform with the requirements set out in the Section 504 and Title II regulations, and are consistent with the Americans with Disabilities Act Amendments Act of 2008."The statement, "As part of its ongoing efforts to comply with Section 504 and Title II" is a very important statement. It's been more than 10 years since Fox signed the May 2009 Resolution Agreement in which Fox agreed to update its Section 504 Manual and 504 process. However, Fox never fulfilled that part of the agreement. As part of the March 2018 Resolution Agreement, Fox is still working on updating its Section 504 Manual and Section 504 process. How can that be when ED OCR states that they do "vigorous enforcement of civil rights"? Obviously there's a systemic problem at ED OCR regarding enforcement of agreements.
“Since the time OCR opened this compliance review in 2010, the District has worked to improve its process for identifying and evaluating students who may be eligible for Section 504 services and protections.”
According to the legal bills from Fox's former law firm (Mickes, Goldman, O'Toole) that I obtained via a Sunshine Request from the district, I discover that the district’s former law firm billed time to review my July 2013 article. The legal bills also documented the many times that Fox's legal counsel helped the district over the years respond to my Public Comments, emails and Sunshine Requests. The legal bills covered May 2010 through June 2014. Legals bills weren't provided for any of the time dating back to 2008 when the attorneys first got involved. My interest in getting copies of legal bills was to determine how many tens of thousands of dollars or more were spent in fighting a Section 504 plan for a student in the district.
The "press release" as noted in the legal bills was for charges in helping to get a story into the Post Dispatch.
Fox's former law firm (Mickes Goldman O'Toole) used the media in many of their school district cases to bully parents. I followed several of their cases across the state over the years and searched for articles related to those cases. Similar comments were posted on those articles as well that were directed at families who pursued Section 504 plans for their children.
Law Firm Video Told Educators Not To Provide 504 Plans
Video Leads to Statewide Training By USDA OCR
Providing that video to the USDA OCR office led to statewide training by USDA OCR for all Food Nutrition Directors in the state of Missouri. Fox didn't attend the statewide training.
My response to Mr. Brazeal also pointed out the numerous times I had contacted ED OCR for 9 years asking them when they planned to complete the March 2010 District Wide Compliance Review or enforce the May 2009 Resolution Agreement. I was informed repeatedly by ED OCR that they were working on it and that they hoped to get it completed soon or in the next several months.
Monitoring Letters Sent to Fox
Fox agreed to update board policies and 504 manuals, etc. in 2009. That didn’t happen. The District was sent numerous monitoring letters documenting that fact. So, now in March 2018 the District signed a new Resolution Agreement which closed the District Wide Compliance Review before it was completed and gave the district another window of several years to complete and fulfill that agreement while being “monitored” by ED OCR.
The District understands and acknowledges that OCR may initiate administrative enforcement or judicial proceedings, including to enforce the specific terms and obligations of this Agreement. Before initiating administrative enforcement (34 C.F.R. §§ 100.9, 100.10) or judicial proceedings, including to enforce this Agreement, OCR shall give the District written notice of the alleged breach and sixty (60) calendar days to cure the alleged breach."
Retaliation Violates Section 504
I have pointed the fact that retaliation or bullying is a violation of Section 504 law in numerous articles and to our school board over the years. This is why it was such an important fact when it was discovered that online defamatory posts directed at me were traced to the homes of our former superintendent, former assistant superintendent (who was demoted to elementary principal) and the home of a former assistant principal.
What's interesting as well is the fact that an incorrect assumption and the forwarding of false information to Fox's former superintendent, Dianne Critchlow by the Lone Dell Elementary principal is what led to the really nasty defamatory online posts that were traced to Fox's former superintendent's home. It wasn't until the principal at Lone Dell apologized to one of the other plaintiffs in our lawsuit for passing on the incorrect information that I was able to confirm who had forwarded the false information to Critchlow. The Lone Dell principal and the teacher who assumed incorrectly that I was involved in the posting of signs in the District were both directly involved in the 504 issues as well.
ED OCR's Lack of Enforcement
USDA OCR Non-Compliance Findings
I also noted in my response to Mr. Brazeal that USDA OCR had issued findings that found Fox and Missouri DESE non-compliant with Section 504. That non-compliance letter was issued in August 2011. This was noted in my July 2013 article along with a reference to a copy of the non-compliance letter. I also wrote an article in March 2013 regarding the USDA Non-Compliance Findings.
Perhaps items weren’t documented in the March 16, 2018 District Wide Compliance Review letter for the 2008 through June 2014 time frame because things changed in the district in June 2014. That’s when the district switched law firms, our superintendent was ousted and the district switched Section 504 Coordinators.