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TL;DR: School is kicking my son out over a medical issue, but wants us to say we're willingly pulling him out. Should I refuse and ask that they formally expel him?

My kindergartener attends a private school (USA) and, as a result of some recent gastroenterological issues, has rather frequent accidents (some weeks as high as 2-3x). I understand this is disruptive to the class, but a family member has always been on-site to clean him up. We have volunteered the help of a classroom aide: a (different) family member and former teacher at the school. Parents providing an aide and that aide being a family member have precedent at the school, but they are refusing, and insisting that he leave. Today they asked us to sign paperwork stating we're withdrawing him of our own volition.

I have reason to believe there are political and interpersonal issues at play in the decision, beyond the "policy and resource constraint" explanation we've been handed. I'm upset, but trying not to be spiteful. All the same, I'm certainly reluctant to let the school get away with shadow-banning a child for a medical issue, especially when we've done everything we can to make it right.

So my questions are:

  1. What liability might we or the school have from withdrawal vs. expulsion?
  2. Is there a so-called "permanent record" where an expulsion might negatively affect my son?
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    Check with a lawyer about the legal issues. They may be trying to do an end-run around the ADA or something. In the meantime DO NOT SIGN ANYTHING! They wouldn't be pushing this piece of paper under your nose unless it did them some good. – Paul Johnson Apr 1 at 8:50
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    Another thought: if they say "policy" ask for a copy of the policy in question. Too many times people say "its our policy" to mean a decision they just took. – Paul Johnson Apr 1 at 8:53
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    Might be good to post this on law – Prince M Apr 1 at 21:35
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    @PrinceM If a question about this is posted on SE.Law, be aware that you can ask what the law says about a situation, but not what you should do. The latter is considered "legal advice", and is off topic for much the same reason that medical advice is off topic here. – Paul Johnson Apr 2 at 9:30
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    This school is taking an awful stance that can negatively affect your child's self-perception I hope you can fight it. – anongoodnurse Apr 2 at 19:16
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The Americans with Disabilities Act covers schools and nurseries, so your son's kindergarten has to comply with it. I'm not a lawyer or doctor, but a gastroenterological issue looks like it would be covered, and the rules in the ADA say that they should be interpreted as broadly as possible.

Getting you to sign a piece of paper saying that you volunteered to withdraw your son sounds like a nasty way of tricking you out of your rights. DO NOT SIGN IT!

I suggest you start by reading the ADA. Print it out, highlight the relevant bits, and take it to the next meeting. I suggest starting with:

  • Definitions: look under "Place of public accommodation"; schools are listed there, so the ADA applies.

  • "Definition of Disability": digestive issues are covered. Lack of bowel control is a limitation of a "major bodily function", and would be considered a disability if it is the result of a medical issue. On the other hand an inability to learn to use the toilet at the normal age would fall under the related "mental impairment" rule (assuming that usual toilet training has been attempted). Inability to use the toilet like other children means that your son cannot care for himself to the extent that would normally be expected, and this is a substantial limit in a major life activity. "Learning" is also a major life activity that will be substantially limited if he cannot attend school.

  • "Modifications in policies, practices, or procedures." They have to do anything "reasonable" to accommodate your son, and if their existing policies get in the way then they have to change. If they haven't got the resources then they need to get some more (within reason), and they can't charge you extra because of it.

Also check out the section on "Retaliation". If they threaten to blacken your son's school record over this, that is also breaking the ADA.

The biggest headache here is the word "reasonable"; ultimately if both sides dug their heels in it would be for a court to decide. However your proposal of having a family member on-hand as an assistant certainly sounds more than reasonable, especially if there is a precedent (do ask "How is my case different from that?").

You say "some weeks as high as 2-3x". If you mean this is only happening 2 or 3 times a week then just telling the school to deal with it would seem reasonable to me. If you meant 2-3 times a day for a week, then maybe less so. A lawyer will be able to give you a better feel for how courts view cases like this.

One other thing: keep a log of communication with the school. If they invite you to a meeting then keep notes, and as soon as possible send them your summary of the meeting including anything they promised or threatened. Same for phone calls.

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    "...substantially limits a major life activity" is meant to be interpreted as the ability to walk, see, lift, hear, eat. breathe, etc. (It's spelled out in your link.) GI issues are listed under "Major Bodily Functions", but again, they mean a disability. I'm not sure this applies if it's a toilet training issue; if it's Crohn's disease/Ulcerative Colitis/other ailment, it does. I usually DV when a source is misinterpreted; if you revise the answer, I'll remove the DV – anongoodnurse Apr 2 at 19:13
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    The OP said "gastroenterological issues". I read that as a physical impairment. The ADA says nothing about duration, so "recent" isn't important. Neither is the exact diagnosis. Bowels are listed as a "major bodily function". "Caring for oneself" is listed as a "major life activity". Going to the toilet is part of self-care, and this is preventing the child from using the toilet like other children, If the difficulty is with toilet training then it falls under the "mental impairment" prong. So either way I believe I have got it right. Also the ADA says this "shall be construed broadly". – Paul Johnson Apr 3 at 8:23
  • @anongoodnurse I have edited the paragraph to clarify the reasoning a bit. – Paul Johnson Apr 3 at 8:36
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    I'm sorry, I still disagree with your interpretation. I know the ADA states "shall be construed broadly" (I did read it, and doctors do sign off on disabilities, so...), but on this issue, we disagree on the interpretation. Not doing so out of lack of sympathy; I hope the OP can resolve this because it sucks. I – anongoodnurse Apr 4 at 21:27
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    I apologize that I have to obscure some details, but suffice it to say that @anongoodnurse your points lie at the crux of the matter. We had (perhaps unwisely) not pushed for a formal diagnosis to avoid labelling stigma. However, his vestibular, proprioceptive, and gastroenterological issues are all recognized by multiple independent medical parties, and we are now moving towards a diagnosis. Thank you both for the very, very helpful discussion. – Drew R Apr 6 at 16:20

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