Title II of the ADA & Public School Removals

by Ainsley McMahon*

Under the Individuals with Disabilities Education Improvement Act (“IDEA”), students with disabilities are entitled to a “free appropriate public education” provided by the state. Some states, such as Georgia, have imposed discriminatory programs that remove students with disabilities from schools altogether. For extreme programs such as these, advocates are pursuing ADA antidiscrimination claims to achieve a higher standard of education for these students, particularly where IDEA protections prove insufficient. Recent cases in Georgia indicate that these ADA claims may be a viable option for protecting disability rights and ensuring disability justice in public schools.

Title II of the Americans with Disabilities Act of 1990 (“ADA”) protects persons with disabilities and prohibits disability-based discrimination, including exclusion from participation in or denial of “the benefits of the services, programs, or activities of a public entity.”¹ The Supreme Court in Olmstead interpreted the ADA to include an integration mandate: a requirement that States provide community-based services for persons with disabilities where appropriate.²

In schools, students with disabilities are often subjected to harsh rules and punishments, including removal from classrooms. These removals can be discriminatory and often reflect an over-policing of Black disabled students in particular.³ The Individuals with Disabilities Education Improvement Act (“IDEA”), which was enacted to protect students with disabilities specifically, fails, in some cases, to protect students subject to discriminatory removals.

Where removal from schools and classrooms is harmful to the student and discriminatory in nature, and IDEA protections fall short, a potential avenue for legal relief is an Olmstead reintegration claim under Title II of the ADA. Two recent cases in Georgia, United States v. Georgia and Georgia Advocacy, both of which have survived motions to dismiss, show that this novel legal theory has potential merit for affected students.⁴

The need to resort to claims under Title II of the ADA arises from shortcomings in the protections afforded to students under the IDEA. A de minimis standard imposed by the IDEA leaves gaps in protections for students. The IDEA entitles students to an appropriate education in the most integrated setting possible; however, even this low standard is often not met.

The IDEA mandates a “free appropriate public education” for students with disabilities,⁵ which the Supreme Court in Board of Education v. Rowley defined as “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”⁶ The Court went on to explain that “to benefit [students] educationally” did not require a school to “maximize the potential of [students with disabilities] ‘commensurate with the opportunity provided to other children.’”⁷ Rather, the IDEA requires States to provide a “basic floor of opportunity” which entitles a child to “meaningful” access to education.⁸

Furthermore, students are entitled under the IDEA to an individualized education program (“IEP”) that is subject to a “least restrictive environment” requirement.⁹ This provision requires schools to educate students with disabilities in classrooms with non-disabled students “to the ‘maximum extent appropriate’” unless an education “cannot be achieved satisfactorily” in such environments.¹⁰

Despite these statutory protections, a significant number of students with disabilities, and disproportionately students of color with disabilities, are removed from classrooms.¹¹ These students are removed for disciplinary reasons, for example, suspensions or expulsions, and for placement in more restrictive settings.

Disciplinary removals impact students with disabilities in two ways. First, students with disabilities are disproportionately subject to removals like suspensions. A 2016 U.S. Department of Education study showed that, while only six percent of the total public school population faced suspensions in the sample year, twelve percent of students with disabilities were suspended and twenty-five percent of Black male students with disabilities were suspended.¹² Second, under-identification of students with disabilities could mean that students are suspended or expelled for behavior that may be the result of an unidentified disability.¹³ At minimum, these students should be protected by the IDEA’s ten-day maximum on temporary suspensions.¹⁴ However, they are entitled to and deserve to receive support and accommodation, rather than removal.¹⁵

Additionally, some students are removed from classrooms to be placed in more restrictive settings, such as the Georgia Network for Educational and Therapeutic Support Program (“GNETS”).¹⁶ GNETS is a statewide program administered by the Georgia Department of Education (“Georgia DOE”) that is meant to “address[] the needs of students with intense and severe emotional and behavioral disorders who are not best served by learning in traditional classroom environments.”¹⁷ The functional effect of this program, however, is to place students with disabilities into discriminatory programs that do not provide either the therapeutic benefits promised or a minimum benefit of education.¹⁸

In either of these situations, a student removed from their classroom may not be receiving an education in the least restrictive environment or the most integrative setting available to them, as required by the IDEA. Although the IDEA should protect such students, many attempts at legal remedies under the Act are “thwarted by courts’ heavy-handed use of the IDEA’s exhaustion clause.”¹⁹ Under the exhaustion requirement, plaintiffs must first “exhaust . . . administrative procedures when they seek relief available under the IDEA.”²⁰ The exhaustion requirement is a particularly high barrier to relief where the school that wrote the IEP and removed the student is the very body running the program at issue.

Where IDEA processes do not adequately address the improper removal of students from schools, students and their advocates may be able to pursue antidiscrimination and Olmstead integration claims under Title II of the ADA. This is a novel legal approach, seen in two cases in which the federal government and disability rights advocates sued Georgia for its discriminatory and harmful GNETS program.²¹ Both cases have survived the motion to dismiss phase in the Northern District of Georgia, showing that antidiscrimination claims under the ADA are a viable option in the educational context.

The ADA applies to public schools and the services provided therein.²² Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”²³ A “qualified individual with a disability” is an individual with a disability who “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”²⁴ This requirement is often paired with the Section 504 of the Rehabilitation Act (“Section 504”) requirement that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity,” including public and private schools, that receive federal assistance.²⁵ Taken together, these statutes mean that students with disabilities cannot be excluded from or denied the benefits of an education by reason of their disability.

In Olmstead, the Supreme Court affirmed the scope of these statutes to also prohibit “unjustified isolation” as a form of disability-based discrimination.²⁶ Discriminatory or overbroad exclusions from schools and classrooms should be considered such an unjustified isolation.²⁷ While there are limits and conditions on removals, removed students are often denied the basic benefits of services. In cases of suspension and expulsion, students often receive insufficient education, with some schools unable to provide any alternative services or instruction at all.²⁸ In cases of placement in more restrictive settings, the education provided is similarly insufficient to benefit the students.²⁹

Facing the basic insufficiencies of these alternative educational settings, students with disabilities and their counsel may consider bringing Olmstead reintegration claims. Under Olmstead, persons with disabilities must be provided community-based support (i.e., integration) when three conditions are met:

[T]he State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.³⁰

In defense of a removal or replacement, a school may argue that the removal is justified under the first prong by the fact of a student’s disability or by the previous determinations made by school officials, as Georgia argued in Georgia Advocacy.³¹ While Olmstead did require that state treatment professionals determine that community placement is appropriate, Georgia Advocacy rejected this requirement, agreeing with other courts that “it would be illogical to make plaintiffs suing a state rely on an opinion from that state’s professionals.”³² The district court went on to explain that the existence of an IEP cannot preclude an Olmstead claim because “the State ‘cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community.’”³³ The court found that this type of circular reasoning cannot support the removal of students, especially in discriminatory programs like GNETS.³⁴

When a court finds that a person with a disability was improperly excluded and discriminated against, they are entitled to community-based support and integration pursuant to Olmstead. Olmstead’s reintegration mandate reflects two important judgments: that improper “placement of persons . . . perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and that exclusion diminishes the quality of life for these individuals.³⁵ Olmstead therefore stands for the proposition that people with disabilities are entitled to support and services within their communities.³⁶ For school-age children, that community must be defined to include their peers, disabled and nondisabled alike, as well as the community environment that a school provides.

In United States v. Georgia, the Department of Justice endorsed this concept, alleging in its complaint that children in the program would be better served by general education classrooms or other more integrated settings.³⁷ In both Georgia and Georgia Advocacy, the ADA discrimination claims survived motions to dismiss, indicating that removal into such deficient educational settings can be shown to be discriminatory.

When schools remove students with disabilities from classrooms—both by disciplinary action and purported accommodation means—they must do so in a way that does not discriminate against the child and places them in the least restrictive setting possible pursuant to ADA and IDEA requirements. When those requirements are not met and removals are discriminatory, students and advocates can bring ADA Title II antidiscrimination and Olmstead reintegration claims to secure placement back into general education classrooms or more integrated settings. Because these improper removals disproportionately affect students of color, this is not only an issue of disability rights but also of disability justice.

* Ainsley McMahon is a J.D. Candidate (2023) at New York University School of Law. This Contribution arose from a paper for the course Examining Disability Rights & Disability Justice taught by Professor Natalie M. Chin examining a new legal theory developing in the Northern District of Georgia, which applies Title II antidiscrimination law in the educational context.

1. 42 U.S.C. § 12132.

2. Olmstead v. L.C., 527 U.S. 581, 607 (1999).

3. See Kate Mitchell, “We Can’t Tolerate that Behavior in this School!”: The Consequences of Excluding Children with Behavioral Health Conditions and the Limits of the Law, 41 N.Y.U. Rev. L. & Soc. Change 407, 410 (2017) (“Of [] 2.8 million students [suspended from public schools in the 2013–14 school year], 700,000 (approximately twenty-five percent) were students with disabilities served by IDEA, and 1.1 million (approximately thirty-nine percent) were black.”).

4. United States v. Georgia, 461 F. Supp. 3d 1315, 1326 (N.D. Ga. 2020); Ga. Advoc. Off. v. Georgia, 447 F. Supp. 3d 1311, 1328 (N.D. Ga. 2020).

5. 20 U.S.C. § 1412(a)(1) (2016).

6. Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982).

7. Id. at 189–90.

8. Id. at 201, 192 (quoting H.R. Rep. No. 94-332, at 14 (1975)); see also Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 753–54 (2017) (explaining that the “free appropriate public education” provision requires meaningful access to education based on a student’s needs, but that the IDEA does not entitle students to accommodations beyond those that meet the “free appropriate public education” standard, even if the same accommodations would be required under other federal disability law (citing Rowley, 458 U.S. at 192)).

9. 20 U.S.C. § 1412(a)(4)–(5) (2016); see also Mitchell, supra note 3, at 430 (“[Free appropriate public education] and [least restrictive environment] together require that students with disabilities receive an individualized education in an integrated setting whenever possible. The individualized program and setting are articulated in writing in an IEP.”).

10. Mitchell, supra note 3, at 429–31 (quoting 20 U.S.C. § 1412(a)(5)(A) (2015)).

11. Id. at 410–11 (“[A] significant and disproportionate number of students with disabilities and students of color with disabilities are excluded from school due to disciplinary removal, despite the fact that IDEA and Section 504 provide students with disabilities enhanced procedural protections in school disciplinary actions.”).

12. Id. (citing U.S. Dep’t of Educ., 2013–2014 Civil Rights Data Collection, A First Look: Key Data Highlights on Equity and Opportunity in our Nation’s Public Schools 3 (2016)).

13. See Mitchell, supra note 3, at 416 (“[O]nly 5.9% of the special education population between the ages of six and twenty-one, and less than 1% of the total student population, were identified as eligible for special education services under the ED category. . . . These figures suggest that . . . children with behavioral health conditions are likely under-identified as eligible for special education services for behavior-related challenges.”).

14. Id. at 431 (“With amendments to IDEA in 1997, [the ten-day temporary suspension] rule was codified to prevent unilateral long-term disciplinary removals of students with disabilities.”).

15. See id. at 409–10 (summarizing the guarantees and protections for students with disabilities in the IDEA and regulations promulgated under Section 504 of the Rehabilitation Act).

16. See Georgia, 461 F. Supp. 3d at 1317 (describing plaintiff’s allegation that “Georgia discriminates against thousands of public school students with behavior-related disabilities” by placing them in “a separate and unequal educational program known as [GNETS]”); see also Alan Judd, Georgia ‘Psychoeducation’ Students Segregated by Disability, Race, Atlanta J.-Const. (Apr. 28, 2016), http://specials.myajc.com/psychoeducation/ (describing the racially disparate impact of GNETS’s “psychoeducational programs”).

17. Georgia, 461 F. Supp. 3d at 1318 (explaining GNETS’s purpose and Georgia DOE eligibility criteria).

18. See Judd, supra note 16 (reporting on the educational shortcomings and “disappear[ance]” of therapeutic services in the GNETS programs).

19. Claire S. Raj, Rights to Nowhere: The IDEA’s Inadequacy in High-Poverty Schools, 53 Colum. Hum. Rts. L. Rev. 409, 418; see also Georgia Advocacy, 447 F. Supp. 3d at 1325 (describing the doctrinal structure which makes exhaustion of IDEA procedures a necessary element in many cases).

20. Georgia Advocacy, 447 F. Supp. 3d at 1324 (citing 20 U.S.C. § 1415(l)).

21. See Georgia, 461 F. Supp. 3d at 1326; Georgia Advocacy, 447 F. Supp. 3d at 1328.

22. Fry, 137 S. Ct. at 159 (“Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests. Of particular relevance to this case are two antidiscrimination laws—Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794—which cover both adults and children with disabilities, in both public schools and other settings.”). In both Georgia and Georgia Advocacy, courts denied Georgia’s motions to dismiss the ADA claims on the grounds that the state did not “administer” the GNETS programs in particular and therefore could do not be subject to the Title II claim. See Georgia Advocacy, 447 F. Supp. 3d at 1322; Georgia, 461 F. Supp. 3d at 1323.

23. 42 U.S.C. § 12132.

24. 42 U.S.C. § 12131(2).

25. 29 U.S.C. § 794(a)–(b).

26. Olmstead, 527 U.S. at 597 (“Unjustified isolation, we hold, is properly regarded as discrimination based on disability.”).

27. See Jamelia Morgan, The Paradox of Inclusion: Applying Olmstead’s Integration Mandate in Prisons, 27 Geo. J. Poverty L. & Pol’y 305, 306 (2020) (“In Olmstead v. L.C., the Supreme Court ruled that unjustified institutionalization constitutes discrimination under Title II of the ADA. Relying on statutory text as a basis for concluding that Congress’s intent was to incorporate a ‘comprehensive view of the concept of discrimination advanced in the ADA,’ the Court emphasized that ‘Congress explicitly identified unjustified “segregation” of persons with disabilities as a “for[m] of discrimination.”’ Through its holding the Supreme Court endorsed and affirmed Congress’s commitment to ending the shameful legacy of institutionalization of people with disabilities through the Americans with Disabilities Act.” (alteration in original) (internal citations omitted)).

28. See Mitchell, supra note 3, at 466–67.

29. See Georgia Advocacy, 447 F. Supp. 3d at 1316–17 (explaining that in 2016, only 10% of the 5,256 GNETS students graduated, and only two thirds of those received a “special education diploma,” which signifies completion of IEP goals); Judd, supra note 16 (reporting that the GNETS program provides “an almost total lack of academic instruction,” with at least one student spending the majority of his time “watching movies and playing computer games.”).

30. Morgan, supra note 27, at 306 (quoting Olmstead, 527 U.S. at 587).

31. See Georgia Advocacy, 447 F. Supp. 3d at 1323.

32. Georgia Advocacy, 447 F. Supp. 3d at 1323; see also Georgia, 461 F. Supp. 3d at 1323–24 (listing various federal court cases rejecting the requirement for a state determination for more integrated services); Day v. District of Columbia, 894 F. Supp. 2d 1, 23 (D.D.C. 2012) (“Although the Court in Olmstead noted that a State ‘generally may rely on the reasonable assessments of its own professionals,’ it did not hold that such a determination was required to state a claim.” (internal citation omitted)).

33. Georgia Advocacy, 447 F. Supp. 3d at 1324 (alternation in original) (quoting Long v. Benson, No. 4:08-cv-26, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008)).

34. Id. at 1323–24.

35. Id. at 1322 (quoting Olmstead, 527 U.S. at 600).

36. See Morgan, supra note 27, at 305–06.

37. Georgia, 461 F. Supp. 3d at 1324 (“[T]he Complaint does indeed allege that public school children with disabilities in GNETS could appropriately be served in general education classrooms and other more integrated settings.”).