As any charter school administrator can tell you, the Individuals with Disabilities Education Act, or IDEA, gives children with disabilities the right to “free appropriate public education.”
Exactly what’s “appropriate,” however, hasn’t always been clear – even after the U.S. Supreme Court issued a ruling saying that “a school must offer (a student) an IEP (individualized education program) reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Some squishy language in there, right?
IDEA isn’t the only parity-in-education law charters and other schools have to think about. There’s also the Rehabilitation Act, most notably Section 504, which prohibits discrimination against children and adults with disabilities in both public schools and other settings. More to the point, Section 504 requires public entities to make “reasonable modifications” to their policies, practices or procedures when necessary to avoid discrimination against people with disabilities.
The Americans with Disabilities Act, meanwhile, prohibits discrimination against children and adults with disabilities and applies to all public and most private schools and colleges.
Unfortunately, and perhaps predictably, none of these laws has eliminated the problems they were designed to tackle and schools will sometimes find themselves facing discrimination lawsuits.
In Oregon recently, five legal groups joined to sue the state over what they say is the state’s lax oversight of special-education programs, especially for children with disabilities in small, rural communities.
In California, a coalition of nonprofit advocacy groups filed a federal lawsuit against the Sacramento City Unified School District, alleging that the district discriminates against students with disabilities, especially black students.
A general liability insurance policy isn’t likely to be of much use when such lawsuits are filed, in part because carriers will often add endorsements in their liability policies to exclude discrimination claims. Indeed, a liability policy typically covers claims involving bodily injury, property damage or personal and advertising injury, not discrimination.
Not all is lost, however. Schools facing disability discrimination suits can defend themselves with an Employment Practices Liability policy that covers claims filed not just by employees but also by third parties.
Deliberate violations of federal anti-discrimination laws won’t ever be covered by any insurer, but the EPLI form was built with discrimination claims very much in mind.
EPLI first and foremost covers wrongful acts arising from the employment process including wrongful termination, discrimination, sexual harassment and retaliation. Written correctly, however, EPLI can also cover a school facing a discrimination suit filed by a disabled student and their parents.
What does “written correctly” mean, exactly?
Among other things: it means ensuring the carrier doesn’t exclude special-education claims from its policy and doesn’t exclude third parties.
Schools face all kinds of risks, we know, and carriers increasingly are placing limits on what they’ll cover, how much coverage they’ll offer and charging more for the coverage they are willing provide.
In the insurance world, we call that a “hardening of the market.” It makes placing coverage that much trickier, not to mention expensive.
Morgan P. Mahoney, an Insurance Advisor and Assistant VP at CCIG, handles the risk management and insurance needs of commercial childcare and school accounts. Reach him at 720-330-7926 or Morgan.Mahoney@thinkccig.com.
CCIG is a Denver-area insurance, employee benefits and surety brokerage with clients nationwide. We do more than make sure you have the right policy. We help you manage your long-term cost of insurance with our risk and claims management expertise and a commitment to service excellence.