Crossing swords over learning disabilities

Court ruling clarifies right of private schools to insist on high

When graduates of the prestigious Phillips Academy in Andover, Mass., turn their tassels this spring, one of their classmates won't be with them. After an up-and-down high school career, Nicholas Axelrod Panagopoulos ran out of chances last December, expelled by a nearly unanimous vote of the faculty after he violated academic probation.

Nicholas, who is diagnosed with an attention-deficit disorder, and his mother, Nancy Axelrod, asked a judge to reinstate him, saying the school had not done enough to accommodate his disability as required under the 1990 Americans with Disabilities Act.

The case illustrates the challenge private schools face in trying to balance their high standards with accommodating students with special needs. Critics say the posh schools sometimes just aren't interested in dealing with students' disabilities.

Court cases in recent years have clarified the duty of colleges and universities toward disabled students, and a 1975 law ensures them fair treatment at public schools.

But the Phillips case brings the issue into a new realm - private high schools. "A lot of parents who've had kids in private school haven't realized that they may also have some protections," says Laura Rothstein, a specialist in disability law at the University of Houston in Texas. "As a lot of states move toward trying voucher programs and charter schools ... this whole recognition of the degree to which accommodation of disabilities plays out in private schools is going to be coming to the surface more."

US District Court Judge Edward Harrington decided Tuesday to let Nicholas's expulsion stand. A jury will have an opportunity this summer to decide if Phillips Academy should have to pay damages.

Many private schools are still in the learning stages about how to help students diagnosed with disabilities, says Jeanne Kincaid, a New Hampshire lawyer who focuses on disability law in education. But she says it appears Phillips Academy administrators had a clearer understanding than most.

DURING Nicholas's time at Phillips, the school provided him with extra tutoring, gave him a laptop computer to help him complete assignments, and waived his foreign-language requirement (considered especially difficult for some students with ADD).

Nicholas had a 'C' average, and when he failed a course at the end of his junior year, he was placed on academic probation. A mark of "U" for unsatisfactory effort would mean expulsion. That mark came in a religion and philosophy class after he missed several deadlines, although he passed all his courses that trimester.

The teacher was acting without a clear understanding of Nicholas's disability, says his lawyer, Marc Redlich. "One of the symptoms of ADD is the appearance of not working hard enough," Mr. Redlich says. The faculty saw a bright kid who scored high on his SATs and they thought he just wasn't applying himself, he adds.

"It's very vague what is required," says Sharon Britton, a spokeswoman for Phillips Academy. The school's policy is to "notify the teachers that certain students have a learning difference. Then it's up to the student to describe further what their needs are." Currently, there are 24 students with ADD at Phillips, as well as others with a variety of disabilities, Ms. Britton notes.

"We are more than willing to help students achieve a level playing field, but we're not rigging the game, and we don't believe that most students with disabilities want that," she says.

Nicholas is asking the school not to lower its standards but rather apply them fairly, Redlich insists. He says a number of nondisabled students with worse academic records and probation violations have been allowed to stay.

Judge Harrington agreed with the school, ruling that Nicholas failed to meet the high academic standards at Phillips Academy "because of a willful lack of effort on his part."

Siding with private schools is consistent with a previous decision in the First Circuit, which includes Massachusetts, says Ms. Kincaid. But that case involved an ADD student whose behavior was very disruptive. Because it looked at academic standards, Nicholas's case was much more difficult, and "goes to the core of how can we reasonably accommodate learning disabilities," she says.

Redlich says the case has struck a chord with families across the US. "I have received calls literally from coast to coast ... from parents of ADD kids who say, more or less, 'the schools don't understand this,' " Redlich says. He hopes the case can be "a clarion call" to how much more educators and parents need to work together to help students diagnosed with disabilities succeed.

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