Happy Birthday!! Missouri DESE's Section 504 Guidance Turns 22 This Month!

It was 22 years ago this month that the Missouri Department of Elementary and Secondary Education (MO DESE) published their Section 504 Guidance for Missouri School Districts.

As of January 2015, MO DESE's guidance hasn't been updated since January 1993. That's pretty amazing!!

Section 504 is a civil rights statute which prohibits discrimination against individuals with disabilities. Section 504 is enforced (supposedly) by the Office for Civil Rights (OCR).

I say "supposedly" because the Kansas City Office for Civil Rights has allowed the Fox C-6 School District to remain non-compliant with the Resolution Agreement that assistant superintendent Dan Baker signed on May 1, 2009 for nearly 6 years. OCR sent 4 monitoring letters to the district between December 2009 and May 2013 detailing what the district needed to do in order to become compliant with the May 1, 2009 Resolution Agreement.

Allowing a school district to remain non-compliant for nearly 6 years DOES NOT give the appearance of enforcement. In 2010, I asked attorneys at OCR handling our complaint if they thought the district would fulfill the Resolution Agreement before my child graduated. The attorney laughed when he told me that OCR has been monitoring some Resolution Agreements for nearly 10 years. It seems that OCR's interpretation of enforcement is quite different than what most people would consider enforcement of the law.

Both the U.S. Department of Education (ED) and the U.S. Department of Agriculture (USDA) each have an Office for Civil Rights.

Any school district that accepts federal funds is required to comply with Section 504 and the ADA AA or they risk losing their federal funds.

School districts are not funded for Section 504 like they are for the Individuals with Disabilities Education Act (IDEA) so there is no incentive for school districts to implement Section 504 other than the risk of losing their federal funds. Therfore, it's pretty easy to see why it's been so difficult for parents in the state of Missouri to obtain 504 Plans for their children that are eligible.

Each year Missouri DESE is required to sign an assurance agreement with the USDA's Food Nutrition Services (FNS) division stating that they will comply with Section 504 law and USDA's Regulations and Guidelines. 

School districts in Missouri sign an assurance agreement each year with Missouri DESE stating they will comply with Section 504 and the USDA's Regulations and Guidelines and MO DESE is responsible for ensuring that the school districts in Missouri properly follow the law.

Missouri DESE not being able to update their guidance in 22 years reminds me of the same problem that's gone on at Fox C-6 for the last decade. Fox hasn't able to update their board Policies and Regulations for nearly a decade other than the ones required by state statute.

Even though Fox was required by law to update their policies, it didn't always get done properly. In 2011, I pointed out to Fox's Board of Education that the district's new Allergy Prevention and Response Policy that was adopted in June 2011 didn't meet state law. Of course, Fox's former superintendent Dianne Brown-Critchlow and assistant superintendent Dan Baker argued with me that it did meet state law and that the district's attorneys approved the policy and so did the board.

Eventually Dan Baker resubmitted the Allergy Prevention and Response policy to Fox's Board of Education (BOE) in November 2011 and it was re-adopted at the December 2011 board meeting.

The original policy submitted by Dan Baker to Fox's BOE stated that the District "will develop a policy" and was only 8 sentences long. The model policy from the state was 4 pages long.

I sent a copy of Mehlville's policy (where Dianne Brown's brother was an administrator) to the board as an example of what the policy was supposed to include. This is just another example of how getting things done at Fox has been a burden for the last decade.

Back to Missouri DESE's Section 504 Guidance, if you search Missouri DESE's website for "Section 504", the first document listed in the search results is the one linked to below.

Missouri DESE's Section 504 Guidance
(January 1993)

The second document is MO DESE's Section 504 Coordinator Responsibilities Guide which is the document linked to below:

Missouri DESE's Section 504 Coordinator Responsibilities

Nowhere is it stated in MO DESE's Section 504 Guidance that Section 504 prohibits retaliation for filing an OCR complaint or for advocating for a right protected by the law, and harassment of students or others because of a disability as it does in South Dakota's Section 504 Guidance that was written in 2010.

I highly recommend downloading South Dakota's Department of Education's Section 504 Guidance document. Compare it to the document that Missouri DESE has on their website. It's a night and day difference!

South Dakota Department of Education's Section 504 Guidance (2010)

In 2009, Missouri DESE talked about updating the document when my wife discussed it with Missouri DESE's former Compliance Officer. The document on MO DESE's website is the same one that my wife downloaded in 2008. Obviously it never got updated.

Our district didn't need Missouri DESE's Section 504 Guidance because they were trained on Section 504 by Fox's former law firm and there was usually training every year at the Annual School Law Seminars sponsored by some of Missouri's law firms that specialize in education related law.

If you are a parent in Missouri looking for information on Section 504, don't bother looking at Missouri DESE's guidance. Go download the Section 504 guidance from South Dakota. It puts Missouri's guidance to shame. Other states have similar documents that are up to date like South Dakota's so you may find others that are even better.

Perhaps someone at MO DESE will read this article and start working on updating the state's guidance on Section 504 considering that it was written 16 years before the 2009 ADA Amendment Act!

Documentation Contradicts Superintendent Dianne Critchlow's Statements at June 2013 Board Meeting!

After I spoke during Public Comments at the June 2013 Fox C-6 School Board meeting regarding an open Resolution Agreement with the U.S. Department of Education's Office for Civil Rights (ED OCR) and a Final Agency Decision from the USDA Office for Civil Rights (USDA OCR) finding Fox C-6 and Missouri DESE non-compliant with Section 504, ADA and the ADAAA, Superintendent Dianne Critchlow made the following statement:

"We are in compliance with every complaint to date and one is in litigation and we cannot discuss it." 

If you read the Monitoring Letters issued by the ED OCR and the Final Agency Decision from USDA OCR using the links below, you'll find that Superintendent Critchlow's statement was FALSE.

Why would our Superintendent say that we cannot discuss these issues?

The ED OCR Monitoring Letters and USDA OCR's Final Agency Decision don't reflect well on her, the school board or our district. And, if she made a statement at the school board meeting it must be true.

If Superintendent Critchlow is truly keeping our school board informed on these issues, I would think that the board would want to know why it has taken our District more than 4 years to meet the obligations of the Resolution Agreement they signed with ED OCR in May of 2009. Our school board should also be asking why our District is spending tens of thousands of dollars in legal fees rather than correcting their documentation and complying with the law.

I'm sure our Superintendent had no idea that ED OCR would find a lot more problems in our District than just not wanting to properly follow Section 504 law. If you read the ED OCR Monitoring Letters below, you'll find that there are a number of problems with the district's policies and handbooks complying with Section 504, ADA and ADAAA. It was such a systemic issue that the Washington D.C. Office for Civil Rights decided to conduct a District Wide Compliance Review of Fox C-6.

The District Wide Compliance Review was initiated in March of 2010 by ED OCR. Fox's attorneys argued that ED OCR was picking on our District and harassing them. Needless to say, ED OCR denied their request to rescind the District Wide Compliance Review. However, the District has done a very good job of dragging things out while spending a lot in legal fees.

Nearly 4 Years and Counting Despite Reassurances
It should be noted that Fox didn't accomplish what they originally agreed to do by August 31, 2009. By reading through the original Resolution Agreement and then the Monitoring Letters and attorney responses, you'll find that our District informed ED OCR that it would have the policies and procedures updated by July 31, 2010 after the district didn't meet the original 2009 dates.

In 2012, the District informed ED OCR that they planned on having the updated policies and procedures completed by July of 2012. Well, that didn't happen either! So, here we are in July of 2013 and the District still hasn't updated their documentation.

Now that the USDA OCR has asked the U.S. Department of Justice (DOJ) for assistance in bringing Fox C-6 and Missouri DESE into compliance, it appears to demonstrate the fact that our school district and many like ours simply ignore the federal agencies. I think this is mostly due to the fact that ED OCR "allows" the District to "voluntarily comply". And, since ED OCR just issues new deadlines and doesn't actually perform any enforcement, school districts ignore them. It will be interesting to see how much money our school board plans to allow our Superintendent to spend on these issues before they decide to comply with the rulings and fulfill their obligations of the Resolution Agreement.

Below you will find some of the documentation showing the District's compliance problems. Our Superintendent has a tendency to just throw out statements thinking or hoping everyone believes her.

I provide the documentation that shows that what she says isn't always true!

Letters from the U.S. Department of Education's Office for Civil Rights (ED OCR) and the USDA OCR document the fact that our district is NOT in full compliance.

Fox and Missouri DESE Found Non-Compliant by USDA OCR
The complaints I spoke of at the June 2013 board meeting are not in litigation. Only the Department of Justice can litigate a complaint with the District. Currently the USDA is working with Missouri DESE hoping that MO DESE will bring our district into compliance with the USDA's Final Agency Decision. If MO DESE fails to do so, the DOJ will then step in to bring about compliance. At that time, the District may possibly end up in litigation. But, at the moment, these complaints are not in litigation. Superintendent Critchlow throws out the litigation claim to so she can keep things behind "closed doors" rather than speaking about them in the public session of the board meetings.

UPDATED: On Friday July 12, 2013, Missouri DESE's assistant legal counsel Kris Morrow sent an email stating that "It remains DESE's position that 504 Compliance within the public schools falls under the purview of the U.S. Department of Education, Office for Civil Rights." following questions sent to Karen Wooton, Missouri DESE's Food Nutrition Director regarding the USDA's August 2011 Final Agency Decision that found MO DESE non-compliant.

Apparently, Ms. Morrow hasn't read the legally binding agreement that Missouri DESE signs with the USDA each year in order to receive their federal funding from the USDA. Ms. Morrow would be well advised to read the April 2011 memo from the USDA OCR office which MO DESE has posted on their website.

Not to rule out any possibilities! But, perhaps Superintendent Critchlow is simply having a difficult time accepting the fact that the Monitoring Letters from ED OCR and the USDA Final Agency Decision aren't accolades for our District. If you're curious, give them a read and see what you think. How would someone document this on their resume as an accomplishment?

The links below open the documents from ED OCR, USDA OCR and our school district attorneys to get an understanding of how compliant or non-compliant the Fox C-6 School District really is with these agencies. Our school district has certainly invested a lot of money in legal fees just to keep from filling out paperwork like 504 Plans for students in our District!

Documentation From Federal Agencies Contradicts

Superintendent's Statements

May 1, 2009 Fox C-6 School District Resolution Agreement with ED OCR

December 8, 2009 ED OCR Issues First Monitoring Letter to Fox C-6 for May 1, 2009 Resolution Agreement

February 26, 2010 Fox C-6 District Attorney Teri Goldman Response to ED OCR's December 2009 Monitoring Letter and Conference Call

March 11, 2010 ED OCR Complaint Notification to Fox C-6 Regarding Due Process Hearing Officer Selection

March 19, 2010 Fox C-6 District Wide Compliance Review Notification Letter from ED OCR

March 29, 2010 Fox C-6 District Attorney Teri Goldman's Letter to Russlyn Ali, Assistant Secretary of Office for Civil Rights, U.S. Department of Education Regarding District Wide Compliance Review

April 7, 2010 ED OCR Enforcement Director Randolph Wills Notifies Fox C-6 that District Wide Compliance Review Will Proceed

April 21, 2010 Fox C-6 Makes Request for Due Process Hearing

August 18, 2011 - Fox C-6 and MO DESE Found
Non-Compliant with Section 504, ADA and ADAAA

This ruling was handed down from the USDA after reviewing the Due Process Hearing that was put on by the District and heard by the District attorney's former law associate who was hired by the District as a Due Process Hearing Officer. The same attorney was hired by the District in January 2009 as a Due Process Hearing Officer for another case in the District and the hearing officer ruled in favor of the District on that case too. I wonder how truly "Fair and Impartial" former law associates are in hearing cases? You'll have to read the USDA's take on the Due Process Hearing Officer's decision.

August 18, 2011 USDA OCR Final Agency Decision Finding Fox C-6 and MO DESE Non-Compliant

March 13, 2012 - Fox C-6 Still Non-Compliant per ED OCR
ED OCR points out a lot of flaws in our District's student handbooks and school board policies that need to be updated. They also point out the fact that there are at least 7 different people identified in the District documentation as the District's 504 Coordinator on page 12. One of the persons listed hasn't worked for the District since 2008. I have to say that ED OCR is fairly thorough in their reading over of  our District's Policies, Procedures and Student Handbooks.

March 13, 2012 ED OCR Monitoring Letter Update Sent to Fox C-6 Documenting Obligations Still Not Satisfied per the May 2009 Resolution Agreement


August 3, 2012 - Fox C-6 Still Non-Compliant per ED OCR
More of the same but with a little more detail of what needs to be corrected starting on page 10 of the document.

August 3, 2012 ED OCR Monitoring Letter Update Sent to Fox C-6 Documenting Obligations Still Not Satisfied per the May 2009 Resolution Agreement


April 25, 2013 - Fox C-6 Still Non-Compliant per ED OCR
The following April 25, 2013 ED OCR Monitoring Letter informed the Fox C-6 School District that it still has not met its obligations from the May 1, 2009 Resolution Agreement signed by Dan Baker. There have been 4 monitoring letters sent to the district since May 2009. Deadlines for were given and never met. Therefore Fox C-6 IS NOT in compliance as Superintendent Critchlow stated at the June 2013 board meeting.

It seems that our district has a serious problem with being able to update its school board policies and regulations. It has now been 3 years since our district informed ED OCR that it would complete the updates of board policies and regulations.

How long does it take to update documentation?

ED OCR is still waiting for board policy updates and changes to its manuals. ED OCR has allowed the District to "voluntarily comply" for more than 4 years. The District has still not complied. Why not?

Perhaps it is time for our school board to ask Superintendent Critchlow why the District under her leadership hasn't been able to meet the obligations of their May 1, 2009 Resolution Agreement with ED OCR.

It has also been nearly 3 years since District attorney Teri Goldman informed ED OCR that they should be completing the board policies and procedures updates by July 31, 2010. Taxpayer dollars are being spent by our District and ED OCR for failing to comply with the May 1, 2009 Resolution Agreement. Perhaps it's time for our school board to start looking for new leadership in our school district.

April 25, 2013 ED OCR Monitoring Letter Update Sent To Fox C-6 Documenting Obligations Still Not Satisfied per the May 2009 Resolution Agreement

Due Process Hearing Officer Selection Concerns
Would you be concerned if you were going to be forced to go through a Due Process Hearing against your school district and the school district gets to choose the Due Process Hearing Officer to hear the case? Would you be concerned if the school district chose a Due Process Hearing Officer that was a former law associate of the school district Attorney representing the school district in the Due Process Hearing? How about if you found out that the attorneys co-represented school districts together at law firms against parents? Would you be concerned if you found out that the two attorneys were presenters at a convention answering questions on the rules of Due Process and discussing topics such as "Testifying in Due Process Hearings"?

Section 504 Procedural Safeguards typically state that the parent or the school district can request a Due Process Hearing to resolve disputes with Section 504 decisions. The safeguards state that the school district will choose the Due Process Hearing Officer. The Due Process Hearing Officer is typically an attorney who acts like a judge to hear both parties on a matter and render a decision. A hearing officer is supposed to be "Fair and Impartial". A quick Google search of the hearing officer chosen by the District immediately raised red flags because the hearing officer chosen by the District was Mr. John Brink who was a former law associate of District attorney Teri Goldman in two different law firms. The choice of a hearing officer can easily sway the outcome of a hearing. I know that hearing officers are supposed to be "Fair and Impartial". But, as proof of my concern, I found several cases where Mr. Brink and Ms. Goldman while working for the same law firms co-represented school districts on cases. What was more troubling was the fact that Mr. Brink and Ms. Goldman were listed together as presenters at the 2007 Missouri Speech Language Hearing Association (MSHA) convention speaking about the rules pertaining to Due Process with one of their topics listed as "Testifying in Due Process Hearings". This is why we filed a complaint regarding our concerns over the school district's choice of the Due Process Hearing Officer with ED OCR.

District attorney Teri Goldman responded to ED OCR investigating our concerns. In her response to ED OCR she stated, "Since 2002, Ms. Goldman occasionally sees Mr. Brink at professional conferences (perhaps 1-2 times per year) and does converse with him at such conferences. Beyond that, she has no personal relationship with him. Since 2002, Ms. Goldman and Mr. Brink have not served as co-presenters contrary to the Simpson's representation. Neither Ms. Goldman nor the District know the basis for the Simpson's assertion in that regard." That's why I submitted the convention schedule brochure PDF document from the 2007 MSHA conference to ED OCR documenting our concern along with a photo of Mr. Brink and Ms. Goldman seated together at the conference luncheon. These documents were found on the MSHA website along with the URL links. Shortly after ED OCR reviewed our complaint and responses from the District, Ms. Goldman and Mr. Brink, the documents were removed from the MSHA website where they had been posted for nearly 3 years. I found it odd that the documents disappeared so quickly after ED OCR investigated our concerns.

So, is Ms. Goldman's statement true about not serving as co-presenters with Mr. Brink? I kept a copy of the MSHA Convention brochure and photo from the luncheon just in case. The session description can be found on page 24 of the program schedule from the following link:

2007 Missouri Speech-Language Hearing Association (MSHA) Convention Schedule

Below is District attorney Teri Goldman's response to ED OCR regarding our concerns of the Due Process Hearing Officer selection. Mr. Dan Baker stated that he was originally concerned after I brought it to the attention of the District and ED OCR that Mr. Brink and Ms. Goldman were former law associates. However, after speaking with District attorney Teri Goldman and she assured Mr. Baker that Mr. Brink would be fair and impartial, Mr. Baker was no longer concerned about the choice of the hearing officer. Apparently, Mr. Baker didn't know that Ms. Goldman and Mr. Brink were former law associates during a January 2009 Due Process Hearing that Mr. Baker was involved in with another family at Fox that was decided in favor of the school district.

March 22, 2010 Fox C-6 District Attorney Teri Goldman's Response to ED OCR Regarding Due Process Hearing Officer Selection Complaint

Fox C-6 Board Member Touts Bringing School District to National Recognition

Cheryl Hermann is running for Jefferson County Council – District 2 in the November 6, 2012 election.  Ms. Hermann recently stated in the October 25, 2012 edition of The Leader newspaper that people should vote for her because, “My experience working collaboratively as a school board member, helping to bring Fox board from ineffectiveness, controversy and lawsuits in 2000 to a nationally recognized school district in 2012.”  Ms. Hermann did not say what kind of national recognition that the school district received.  But, a Google search for “Fox C-6 504 Compliance Reviews” will find presentations from across the country where Fox C-6 has been recognized nationally as being chosen as one of two school districts out of the entire nation that are undergoing a Discrimination Review being conducted by the U.S. Department of Education’s Office for Civil Rights for ensuring access to appropriate services for students with medical and health conditions and impairments such as food allergies and diabetes.  This is definitely an honor to have been chosen as not too many school districts undergo District Wide Compliance Reviews nationally.  To save a little time, I have included one of the top results from a Google search from the Nashville Public Schools website: (www.mnps.org/AssetFactory.aspx?did=60645).

This was a presentation given by a law firm at the Spring Forum 2011.  You will be able to find Fox C-6 on slide #30 titled Current OCR Disability Discrimination Reviews.

Fox C-6 was informed of their impending District Wide Compliance Review in March 2010 by Russlyn Ali, the Assistant Secretary for Civil Rights of the U.S. Department of Education.  The District Wide Compliance Review is still ongoing as the district attorneys have notified me in the past when I made inquiries to the school board regarding this issue.  I also made Freedom of Information Act (FOIA) requests for information pertaining to the results of the Compliance Review.  At this time since the Discrimination Review is still ongoing and there is nothing to report according to the FOIA request response.

How long does it take to do a Compliance Review?

I would like to note that it is a fact that the Compliance Review is being conducted even if the district has not publicly acknowledged this information.

Another interesting Google search is for “Fox C-6 504 Resolution Agreement” which will also find presentations from across the country which documents a Resolution Agreement signed by the school district on May 1, 2009 which has an LRP publication number of (109 LRP 54751 (OCR 2009)).  Here is a direct link to one of the presentations discussing the Resolution Agreement at a national level and can be found on the Utah State Office of Education website: (www.schools.utah.gov/sars/DOCS/disability/emer504.aspx).

In the Resolution Agreement the district agreed to update its 504 Manual, policies and procedures to remove references to mitigating measures and to incorporate a definition of a person with a disability that is consistent with the ADAAA.  Revisions will include but not be limited to, defining 'major life activities' as they are defined in the ADAAA and removing references to any court decisions that were specifically rejected by the ADAAA.  Additionally, it was identified by ED OCR that district policies and student handbooks identified at least 7 different contacts as the Section 504 coordinator for the district.  One of which has been retired since 2008.

You may ask how long does it take for the district to update its documentation as requested?  School board members Cheryl Hermann and Dan Smith should be asking questions as to why it is taking the district so long to produce these documents?  Does it truly take more than 3 years to update documents in our school district?  This responsibility should also fall on the shoulders of the superintendent.  Does this demonstrate effective leadership or management skills?  It has already been more than 6 months since the 'completely overhauled' school board policies, regulations and forms were released for review.  The district informed ED OCR that they would be providing updated policies to ED OCR by August 28, 2012 as part of the Resolution Agreement after failing to meet previously set deadlines informing ED OCR that the update policies had to first be approved by the school board.  The school failed to meet that deadline and ED OCR extended the district deadline another 2 months.  Perhaps Cheryl Hermann and Dan Smith can explain why these deadlines are consistently not being met?

So, it seems that national recognition can have different meanings for different people.  And certainly the amount of legal fees spent in making corrective actions and challenging the U.S. Department of Education and USDA Final Agency Decision should be recognized as part of Ms. Hermann’s, “experience and proven actions as an elected official on the Fox school board.”  Those legal expenses can be found in the school board packets which contain the Check Register listings for payments made to vendors that are approved each month by the school board.  You simply need to know the name of the law firm or other law firms that have been involved in order to total up the cost to the taxpaying public.  Legal expenses have now exceed well over $200,000!

Ms. Hermann is running on the idea that she is “A Voice Of Reason and Common Sense!”  Is it Common Sense to fight the U.S. government with local taxpayer dollars?  Wouldn’t it have been much cheaper and easier for the school district to simply comply with Federal Laws rather than continue spending taxpayer dollars on legal fees?

I recently learned that a different attorney from the school district law firm has to get up to speed on these matters as the current one is retiring.  At least that was the reason given this time by Karl Menninger from the Kansas City U.S. Department of Education Office for Civil Rights (ED OCR) office monitoring the Resolution Agreement in a recent email.  However, this was the same reason given to Senator Roy Blunt’s office by the KC OCR office in May 2012.  It begs the question as to how long does it take to get up to speed?  Attorneys are needed to help review and help produce documentation that ED OCR has been requesting from the district since May 2009?  Luckily for the school district, ED OCR graciously continues to provide the district with new deadlines each time it doesn't meet them rather than take enforcement actions or reopen the investigation like their regulations allow them to do.  Per an email from Rosanne Shepherd of Kansas City ED OCR, “OCR is continuing our efforts to allow the District to comply with the voluntary agreement.  The District has not indicated they refuse to comply with the agreement, therefore, at this time OCR has not decided if it will reopen the investigation or to move to enforcement.  OCR will continue to monitor the District’s compliance with the agreement and will keep you informed of monitoring activities.”

Mr. Dan Smith another Fox C-6 school board member should also take credit for helping bring this type of national recognition to the Fox C-6 school district since he has been a school board director since April 2008 before all of this occurred.  By the way, Dan Smith is running for Missouri State House of Representative in District 113.

Maybe Dan Smith would be interested in answering your questions about spending your taxpayer dollars regarding these matters?

So, what kind of National Recognition would you like to see for Jefferson County?