A case of alleged discrimination by a Manhattan preschool against a boy diagnosed with autism reminds us that individuals with special needs are often treated unfairly and legal action is sometimes necessary to protect their rights.
The parents of a two-year-old boy say that a private school in Tribeca offered him a spot in its preschool program, but rescinded the offer after learning that the boy had been diagnosed with autism. The parents have filed a lawsuit in federal court in Manhattan, alleging violation of the Americans with Disabilities Act (ADA). “While a private school does not have to provide specialized services for a child with a disability, it may not discriminate based solely on disability,” says Marion Walsh, an attorney with Littman Krooks LLP, who assists children with special needs and their parents. “Children with high-functioning autism often can succeed very well in a mainstream environment,” she says. “From a parental perspective, enduring exclusion from school based solely on a child’s disability can be devastating.”
The parents say that the school withdrew their son’s acceptance the same day the school hosted a speaking engagement with Temple Grandin, a noted advocate for people with autism. 
The allegations represent a troubling reminder that adults and children with special needs still face discrimination every day. Although strong legal protections are codified in the law, action by parents and attorneys is often necessary to enforce legal rights. Parents and attorneys must continue to be vigilant enforcers.
Three federal statutes protect individuals with special needs from discrimination:
- The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment and in public entities and places of “public accommodation,” which includes most privately-run schools and child-care centers. The ADA does not specific to schools, but in the education context, it requires schools to provide reasonable accommodations, necessary auxiliary services and reasonable modifications of policies and practices to prevent discrimination against students with disabilities.
- The Individuals with Disabilities Education Act (IDEA) requires that every public school district in the United States identify children with disabilities and provide children with disabilities a Free Appropriate Public Education (FAPE). All 50 states accept federal funding under the statute and are therefore required to provide appropriate special education and related services. The IDEA requires the development of an Individualized Education Program (IEP) for each student with a disability and that provides individually tailored services and is reasonably calculated to provide educational benefits.
- Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities in programs and activities that receive federal funding or financial assistance. Section 504 provides that students with disabilities must receive an education that is comparable to that provided to students without disabilities. Even if students do not receive special education services under the IDEA, they may receive related services under Section 504.
Parents, advocates and attorneys have worked tirelessly and persistently to ensure that individuals with disabilities are included in school and workplaces. People with disabilities worked hard to achieve these legal protections. Parents of children with special needs, with support from attorneys and other advocates, must continue to work to enforce those rights. To learn more about the special education process, click here.
By Marion Walsh, Esq., Littman Krooks LLP
As the holiday season approaches, our firm thanks those who have trusted us with their children and their education.
For most of our families, the need to learn and to do well in school is as essential as the need to eat and breathe. When a child is struggling in school and unable to learn or attend, as parents, our worlds fall apart. All parents, no matter what their background, want simply for their children to have a better life than they have. The greatest gift any parent can ask for is a healthy, engaged child who is able to attend school and make progress. While this sounds simple, in some cases, it can be extremely complex. In some cases, years of litigation and heartache can result from the wrong placement for a child who just cannot access the public school environment. These situations often seem hopeless, but with patience and tireless advocacy, we have helped parents and students find their way. Remember though, as Dr. Temple Grandin noted, often, in helping children with their struggles, “there is no single magic bullet.”
But fortunately, in some cases, there is a magic bullet. For some of our students, a new school placement has made all the difference. We have represented, among others, children who were bullied and threatened suicide in school but who are now engaged; children for whom school made them physically ill but who are now healthy in a new placement, and children who were having violent meltdowns frequently but who are now receiving support in residential settings. For each of these cases, we worked on a solution and in the best situations, worked with the school districts so that all understood the student’s needs a bit better.
An appropriate placement can change a life. Conversely, in a few cases, the wrong school can be life threatening. Struggling parents and students must not give up. The legal process can be difficult and onerous, but children with disabilities in the United States have the right to a free and appropriate public education and the school must work for the child.
At the holidays approach, take the time to appreciate the greatest gift—children who are healthy and able to attend school and to learn. Do not take normalcy for granted. As for those in your life who are struggling, take the time and effort to truly understand them and make every effort to make sure your school district understands your child also. Never give up and continue to cherish your children.
