PJ13 Disability Discrimination: Students

Albuquerque Public Schools (APS) affords all students equal educational opportunities, as well as equal opportunities to participate in extra-curricular activities and prohibits discrimination and harassment in any program or activity of or sponsored by the APS. Disability harassment is a form of discrimination and is prohibited by APS policy and by state and federal law.

Overview

Disability discrimination and harassing behaviors include, but are not limited to, making comments, name-calling, conduct of a physical nature, or other expressive behavior directed at an individual or group on the basis of an individual or individual’s disability or disabilities. Discriminatory and harassing behavior creates a demeaning, intimidating, and hostile educational environment.

Disability Discrimination is considered to have occurred when such conduct:

has the purpose or effect of creating an intimidating, hostile or offensive academic environment
has the purpose or effect of substantially or unreasonably interfering with a student’s academic performance
otherwise adversely affects an individual’s academic opportunities

Examples of Disability Discrimination

The following are examples of circumstances that may constitute disability discrimination:

A student places classroom furniture or other objects in the path of classmates who use wheelchairs, impeding the classmates’ mobility
denying a student with a disability access to lunch, field trips, assemblies, and extracurricular activities as punishment for taking time off from school for required services related to a student’s disability
belittling and criticizing a student for using accommodations in class
Taunting and belittling a student with special needs by mocking and intimidation

Prevention and Remediation

School personnel who become aware of disability-related discrimination shall promptly and effectively act to end the harassment and prevent it from recurring and, where appropriate, remedy the effects on the student who was harassed. Remedial measures will generally include counseling both persons(s) who have been harmed by harassment and person(s) who have been responsible for the harassment of others and implementing monitoring programs to follow up on resolved issues of disability harassment.

Students should report any concerns related to disability discrimination to a school administrator.

Reporting and Complaint Procedures

The following procedures apply to discrimination and harassment complaints by student(s), parent(s), legal guardian(s) employee(s), or third parties. Examples of third parties include audiences and competitors at inter-district athletic competitions, service contractors, school visitors and employees and businesses or organizations participating in cooperative work or school programs with the district in relation to the incident(s) at issue.

These procedures shall be available in every school site, administrative office, posted on the district website and included in the student handbook. Furthermore, a more detailed in scope reporting and complaint procedure process can be found in the Office of Equal Opportunity website.

Who May File a Complaint

Student(s), parent(s) or legal guardian(s) who believes his/her/their student has been subjected to alleged discrimination and/or harassment by a student, teacher, administrator or other school personnel or third parties should report the incident(s) immediately to a school administrator such as a principal, assistant principal and/or dean of students. They may also directly report to the Office of Equal Opportunity Services or any other civil rights entities such as the New Mexico Human Rights Division.

Any APS employee, who becomes aware of an alleged discrimination and/or harassment incident, whether by witnessing the incident or being told of it, must report it to their immediate supervisor or to the Office of Equal Opportunity Services. This reporting obligation is in addition to a school employee’s reporting obligations to appropriate officials pursuant to law and APS Procedural Directive G. Personnel: Reporting Child Abuse, Neglect or Educational Neglect, when the employee has a reasonable belief that a student is being sexually abused or subjected to other forms of abuse and neglect prohibited by law.

How to File a Complaint

Supervisors and administrators who have received a complaint must report the alleged allegation(s) to the Office of Equal Opportunity Services.

An employee may contact the Office of Equal Opportunity Services directly.

When the district becomes aware of the existence of an alleged discrimination and/or harassment, it is obligated by law to take prompt and appropriate action, whether or not the victim wants the district to proceed or not.

For allegations that may rise to the level of sexual violence, parties may choose and/or be directed by the Office of Equal Opportunity Services to also file a police report. Individuals who file police reports should also report to the Office of Equal Opportunity Services.

Types of Complaints

Informal Complaint Resolution Process

Informal resolution may be an appropriate choice when the conduct involved is not a serious or repetitive nature and disciplinary action is not required to remedy the situation. The determination is made by an administrator or designee. The informal resolution process can be ended by a complainant at any time to begin a formal complaint process. The administrator or designee shall document any informal resolution, and a copy of such documentation shall be forwarded within three (3) business days of resolution to the Office of Equal Opportunity Services, and when appropriate, the Chief of Human Resources & Legal Services.

Formal Complaint Resolution Process

Initiation of the formal complaint procedures requires a written complaint. The complaint form can be accessed from the Office of Equal Opportunity Services’ webpage. Hard copy forms are available in the Office of Equal Opportunity Services. Individuals can also request a school or department to provide a hard copy form.

Formal complaints must be submitted in writing to the Office of Equal Opportunity Services within 180 days from the date of alleged act(s), in accordance with timelines set forth by the Office of Civil Rights, unless the time for filing is extended by the Office of Equal Opportunity Services for good cause (to be determined by the OEOS). Failure of a complaint to comply with any time limitation in the complaint procedure may result in dismissal of the complaint and/or denial of the appeal. Dismissal shall not preclude the individual’s right to pursue the complaint through other appropriate external agencies.

The Office of Equal Opportunity Services shall review the formal complaint to determine whether the matter falls within the scope of these procedures. Within ten (10) business days after the complaint submission date, the Office of Equal Opportunity Services shall initiate an investigation of the matters alleged or inform the complainant in writing that the matters alleged in the complaint are not within the jurisdiction or authority of the district to investigate and that the district will not carry out any further investigations. If the matter does not involve allegations of discrimination within the scope of these procedures, the Office of Equal Opportunity Services shall forward the matter to the proper district administrative authority for review, if appropriate. During either the informal or formal complaint processes interim measures, such as schedule changes, placing employees on leave and/or counseling support may be implemented to protect students in the educational setting, pending the outcome of the process.

Investigation

The Office of Equal Opportunity Services shall oversee that an adequate, reliable and impartial investigation of the complaint is conducted by an investigator at the school site and/or where the alleged discrimination occurred.

In conducting the investigation, the investigator shall interview all parties identified in the complaint and other witnesses that the investigator determines may provide information relevant to resolving the complaint allegation(s). Both the complainant and the respondent shall have the opportunity to identify witnesses to be interviewed and provide documentation or other evidence for the investigator to review.

The investigator shall consider the evidence compiled and take whatever additional actions necessary to complete the investigation.

The complainant and/or respondent will be informed of the status of the investigation at regular intervals. However, at any given time during the on-going investigation process, the complainant and/or respondent may request a status update on the current complaint. This may be requested in writing directly to the Office of Equal Opportunity Services.

Notice of Resolution

The Office of Equal Opportunity Services shall notify both the complainant and respondent in writing within forty-five -(45) business days from the complaint submission date of the results of the investigation. In some cases, the investigation may take longer. However, the Office of Equal Opportunity Services and investigator will make every reasonable effort to ensure that the investigation is completed within the appropriate timeline. The Office of Equal Opportunity Services shall oversee this process.

Appeal Rights

A party not satisfied with the resolution may submit a written appeal within ten (10) business days to the superintendent. Ten business days shall be deemed effective on the person served as the date of delivery, if personally served, faxed or email, or effective three calendar days of deposit by first-class mail if delivered by mail. This written appeal shall state with particularity the nature of the disagreement, the reasons underlying such disagreement and how the outcome would be changed by reconsideration of the determination.

The superintendent or designee shall conduct a review of the record to determine whether the preponderance of the evidence supports the determination. The superintendent or designee shall issue a written decision and mail it to the parties within fifteen (15) business days of the receipt of the appeal. The superintendent’s decision is a final decision.

Complaints to an External Agency

If a party is not satisfied at any time, including with the superintendent’s decision, the party may file a complaint with the Office of Civil Rights (“OCR”) in Denver, Colorado. More information is available at the Office of Civil Rights, Federal Office, 1244 Speer Blvd, Suite 310, Denver, CO 80204-3582, (303) 844-5695. Individuals may also file complaints with any other civil rights entities such as the New Mexico Human Rights Division.

Disciplinary Consequences

Any individual who violates this policy by engaging in conduct defined throughout this policy that directly or indirectly causes intimidation, harassment or physical harm to another student or employee will be subject to disciplinary action.

False Complaints

Any individual who knowingly files a false or misleading complaint alleging harassment, discrimination or retaliation is subject to appropriate disciplinary action, including, but not limited to, dismissal of the complaint.

Retaliation

Retaliation means some type of adversarial or punitive action taken against an individual or individuals as a result of filing a complaint or participating in the complaint process. An individual or individuals who make complaints in good faith shall be free from retaliation, coercion and reprisal in seeking resolution of their complaint. Furthermore, persons acting as witnesses to a complaint, in good faith, shall be free from reprisal. Retaliation against any student seeking assistance at his/her/their school, filing a complaint, or participating in the investigative process is grounds for a subsequent retaliation/harassment complaint.

Confidentiality

APS will respect the privacy of the complainant, the individual(s) against whom the complaint is filed and the witnesses as much as possible, consistent with our legal obligations to investigate, take appropriate action, and conform to any legal discovery or disclosure obligations under FERPA. Any information gathered during an informal procedure may be used during a formal procedure, if initiated. While there can be no assurance of complete confidentiality, complaints under this procedure will be treated as sensitive information not to be shared with others except in limited circumstances. Decisions regarding confidentiality will be made by the Office of Equal Opportunity Services.

Legal Compliance

The Office of Equal Opportunity Services Director has the responsibility to monitor the compliance of state and federal laws and regulations, as well as, district policies and procedures related to harassment and discrimination issues.

For discrimination and harassment claims contact:
Office of Equal Opportunity Services
Albuquerque Public Schools, 6400 Uptown Blvd, NE
Albuquerque, NM 87110
https://www.aps.edu/equal-opportunity-services

Administrative Position:

Associate Superintendent of Equity, Instruction, Innovation and Support
Chief Operations Officer
Chief of Human Resources & Legal Services

Department Director:

Director of Title IX Programs
Director of Equal Opportunity Services
Executive Director of Student, Parent and Employee Service Center

Cross References:

Legal Reference:

Civil Rights Act of 1964
The Family Educational Rights and Privacy Act
New Mexico Human Rights Act (NMSA § 28-1-7)
6.10.3 NMAC

Board Policy:

AC Nondiscrimination

Procedural Directives:

Forms:

Discrimination and/or Harassment Complaint Form (Office of Equal Opportunity Manual)

Reviewed: April 2004
Reviewed: January 2005
Reviewed: December 11, 2019
Revised: January 17, 2020

This page was last updated on: December 9, 2009.