Section 504 in the Public Schools: How Does It Differ from the IDEA?
Three laws: Section 504 of the Rehabilitation Act of 1973 (“Section 504”), Title II of the Americans with Disabilities Act (“ADA”), and the Individuals with Disabilities Education Act (“IDEA”) provide procedural and substantive protection for students with disabilities. Section 504 and the ADA are federal antidiscrimination laws that prohibit discrimination based on disability and are applicable in public schools. However, the ADA also applies to non-public schools. Section 504 was passed in 1973, as an amendment to the Federal Rehabilitation Act, as Congress’ first response to try to correct unconstitutional discrimination against disabled students in public schools. The IDEA, passed in 1975, includes provisions granting funds for special education implementation and ensuring that all states provide procedural rights and entitlements to eligible individuals and their parents or guardians.
There are important differences between the legal requirements of Section 504 and the requirements of IDEA. For instance, the assurance of a free and appropriate public education (“FAPE”) under IDEA applies only to students who, because of their disability, need special education and related services. Section 504’s protections, on the other hand, include all students covered by IDEA as well as students whose disabilities substantially impair one or more major life activities. A student with diabetes or with ADHD in need of just accommodations within the classroom may not be covered under IDEA but would likely be covered under Section 504. Most protected individuals under 504 are entitled to a “free appropriate public education” in much the same way that students with qualifying disabilities are entitled to FAPE under IDEA.
Unlike the IDEA which prescribes specific eligibility definitions and criteria, students are eligible for Section 504 protection if they have a physical or mental impairment that substantially limits one or more major life activities or if they have a record of or are regarded as having such an impairment.
The term “substantially limits” means when the individual’s important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.
Section 504 is based on a three-pronged evaluation.
1. Does the student have a mental or physical impairment?
2. Is the student substantially limited?
3. Is the student substantially limited in one or more major life activity? (caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working) (See Appendix A, below)
There are many procedural protections in Section 504, a few of the more significant requirements require the school district:
- Give notice to the parent of a student with disabilities and give notice to the public in general to begin “Child Find.”
- Conduct a self-evaluation of all of their policies, practices, procedures, customs or usages to determine if they have a discriminatory impact on students with disabilities.
- Designate a person by name and address who will coordinate the District’s compliance with Section 504.
- Be able to give the parents a written statement of their rights, and their duties to the parents and the student, under Section 504. These rights are not the same as those under IDEA.
- Designate a Section 504 grievance coordinator.
- Adopt “grievance procedures” that provide for prompt and equitable resolution of any complaint” that the parent might make under Section 504.
- Write guidelines for evaluation for mental or physical impairment.
- Have an evaluation process that looks at a functional analysis of the impairment, how it causes a lack of access to full education, and what could be done to remove the barrier to what the typical students have access to.
- Be able to provide a free appropriate public education policy statement.
- Have a discipline policy for Section 504 eligible students. Under Section 504, cumulative short suspensions can add up to a significant change in placement. A suspension for one night might trigger a need for an independent evaluation.
The regulations for Section 504 do require school districts to provide an individualized program under which an eligible student receives FAPE, however, it does not specify the format of that plan, as do the regulations for the IDEA.
Although not recommended, courts and OCR have held that Section 504 permits informal or even verbal accommodation plans. M.H. v. Montana High Sch. Ass’n, 25 IDELR 42 (Mont. 1996). However, OCR does require an evaluation and a placement decision by a group of knowledgeable persons. Culver City (CA) Unified Sch. Dist.,16 IDELR 673 (OCR 1990).
School districts should look to OCR guidance and case law to provide some guidance for what plans must contain to be compliant with the law. The following are some basic requirements:
1. Nature of the student’s disability and the major life activity it. Usually this is learning; however, it is not limited to that. It’s the job of the team that evaluates the student to determine if the disability substantially limits a major life activity.
2. The basis for determining the disability. Section 504, like the IDEA, requires schools to meet certain evaluation procedures, which must be documented in the accommodation plan. Appendix A, below, provides some examples.
3. The educational impact of the disability. The multidisciplinary team must describe how the disability affects the child’s educational performance so proper accommodations can be prescribed.
4. The necessary accommodations. Section 504’s FAPE standard requires schools to provide services that are designed to meet the individual needs of individuals with disabilities as they meet the needs of individuals without disabilities (non-discrimination) . This standard differs from the IDEA’s standard, thus, it is possible in some cases for the required services to also differ from those mandated under the IDEA. Some sample accommodations are available in Appendix B.
5. Placement in the least restrictive environment. The LRE requirement in Section 504 is similar to the LRE mandate of the IDEA.
Generally Section 504 plans will contain less components than an IEP. Most education experts do not recommend following IEP procedures for students who are ineligible for IDEA services. A sample Section 504 plan is provided in Appendix C, below.
OCR has stated that lack of specificity in a written Section 504 plan is excusable where the district has provided the required accommodations and the district required flexibility to enable it to modify the student’s services according to her needs during the course of year. Wayne Cent. Sch. Dist., 43 IDELR 257 (OCR 2005).
Similarly, in Cascade Sch. Dist., 37 IDELR 300 (SEA OR 2002), parents of a child with a peanut-allergy argued that a 504 plan was not sufficiently detailed. An administrative law judge decided the district offered a 504 plan that provided accommodations and services that allowed the student to safely access school as adequately as the district allowed for safe access to students without disabilities, and that the 504 plan was designed to meet her individual needs as adequately as the needs of students without disabilities are met.
Because they are generally accommodations and modifications, not specially designed instruction, services for children with Section 504 plans are most often delivered in the regular education classroom. See Appendix B below, for a list of common Section 504 services.
Legal Remedies for Violations of Section 504
There is a lot less litigation under Section 504 than under the Individuals with Disabilities Education Act. A hearing procedure is available, but it is much less formal than under the IDEA. An impartial hearing officer is appointed by the school district. This person must have some knowledge of 504, although a law degree is not required. The hearing officer must not be an employee of the school district. The hearing must be at least tape-recorded, but transcripts are not required. The formal question and answer format of an IDEA hearing is not required, both parties make informal presentations instead. Legal objections to evidence or testimony will not be recognized; the hearing officer merely gathers all the evidence he or she feels is required to make a decision. The hearing officer must issue a written decision with findings of fact and conclusions of law.
The remedies available under the IDEA are not necessarily available under Section 504. The following are available remedies under the IDEA:
- Private school tuition reimbursement – The IDEA allows for this remedy pursuant to the Supreme Court decision in Burlington School Committee v. Massachusetts Department of Education,, 556 IDELR 389 (1985) however, there is limited precedent recognizing such reimbursement for denials of FAPE under Section 504.
- Compensatory damages – Many courts have ruled money damages are available under Section 504 when there is proof of intentional discrimination, bad faith or gross misjudgment. See the U.S. Supreme Court’s decision in Franklin v. Gwinnett Public Schools 27 IDELR 890 (1992), (compensatory damages are available for student suits against districts under Title IX).
- Punitive damages – The recognition that compensatory damages are available for Section 504 violations has not been extended to punitive damages. This is true for the IDEA as well
- Compensatory education – The OCR has acknowledged the availability of this remedy and has ordered provision of compensatory education to students with disabilities denied appropriate education services. See Chicago (IL) Bd. of Educ., 257 IDELR 526 (OCR 1984)
- Attorney’s fees – Attorneys’ fees are available to prevailing parties under the Section 504 regulations state, “In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party (other than the United States) a reasonable attorneys’ fee as part of its costs.” 29 USC 794(b).
The following list shows what a typical student can do. If a given student cannot do one or more of these tasks, the student may be eligible for Section 504 protections.
____ Get to school the same way that typical children their age get to school
____ Arrive at school on time
____ Stay outside on the school grounds, without unusual supervision, until the bell rings
____ Go to the right room when the bell rings
____ Interact with other students during the day in socially appropriate ways
____ Understand and follow school rules
____ Respond appropriately to instructions from school personnel
____ Ask for help when needed
____ Receive information both orally and in writing
____ Communicate effectively through speech or writing to teachers and classmates
____ Participate in class as required by the teacher
____ Work independently
____ Work in groups
____ Not disrupt the class
____ Handle the volume of material introduced each day in the regular curriculum
____ Handle the rate at which material in introduced in the regular curriculum
____ Read at grade level
____ Write at grade level
____ Not require the use of assistive technology during the day
____ Take tests without modifications such as extra time, oral administration taking the test in a quiet place
____ Change classes when the bell rings
____ Go to the restroom, if needed, during the class changes and without assistance
____ Get the next period’s classroom on time
____ Sit in the correct assigned seat in each class
____ Use a school locker and get the right materials
____ Each lunch with the regular students
____ Participate in regular PE
____ Participate in recess or free time with little or no supervision
____ Not create a safety concern
____ Attend general school meetings
____ Copy down the homework assignments correctly
____ Do the required homework each night
____ Take the homework and necessary materials back to school
____ Turn the homework in on time
____ Attend school each day
____ Stay for the whole day
____ Have only a few absences
____ Make up any work that is missed
____ Stay after school and participate in extracurricular activities
____ Pass each year and advance to the next grade
____ Return to school each Fall
____ Take all required exit exams or other tests
____ Be on schedule to graduate with a regular diploma after 12 years of instruction
____ Be prepared to live independently after graduation
____ Be prepared to be employed after graduation
____ Be able to get access to recreation and leisure activities in your community after graduation
____ Be able to get access to further education and training to upgrade their skills after graduation
Services that should be considered available when writing a Section 504 Plan include:
____ Providing a structured learning environment
____ Repeating and simplifying instructions about in-class assignments
____ Repeating and simplifying instructions about homework assignments
____ Supplementing verbal instructions with visual instructions
____ Using behavioral management techniques
____ Adjusting class schedules
____ Modifying test delivery
____ Using tape recorders
____ Computer aided instruction
____ Other audio-visual equipment
____ Selecting modified textbooks
____ Selecting modified workbooks
____ Tailoring homework assignments consultation with special education
____ Reducing class size
____ Use of one-on-one tutorials
____ Use of classroom aides
____ Use of classroom note takers
____ Involvement of services coordinator to oversee implementation of special programs and services
____ Possible modification of nonacademic time such as lunch room
____ Possible modification of nonacademic time such as recess
____ Possible modification of nonacademic time such as physical education
Appendix C – Sample Section 504 Conference Summary
SECTION 504 CONFERENCE SUMMARY
STUDENT: __________________________________ DATE: __________________
SCHOOL: ___________________________________ GRADE: _________________
CONFERENCE PARTICIPANTS (Title and Name)
PURPOSE OF CONFERENCE:
To consider possible eligibility and provision for services under section 504 of the Rehabilitation Act of 1973
To review eligibility and services being provided for under Section 504 of the Rehabilitation Act of 19783
Other: (Specify) ________________________________________________________
I. IDENTIFY EDUCATIONAL CONCERN(S):
II. SUMMARY OF EVALUATION (if applicable) Identify assessment procedure(s) and results:
III. DETERMINATION OF ELIGIBILITY (if applicable) Consider and specify if a mental or physical condition impacts significantly on one or more of the following: care of oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, an/or learning, in the school setting.
Condition/Life Function Description of the Significant Impact
Within the School Setting
IV. APPROPRIATE SERVICES/ACCOMMODATIONS TO BE PROVIDED (if applicable) Describe each accommodation/service to be provided by the district for areas of significant impact listed in Section II.
V. SUMMARY OF OTHER POINTS OF DISCUSSION/RECOMMENDATIONS (if applicable)
You have the right to review your child’s records and to request a hearing if you disagree with the district’s identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal.
You have the right to legal representation, to review your child’s records and to request a hearing if you disagree with the district’s identification, evaluation, provision of services, or change or termination of services under Section 504. If you desire a review of the records or wish to initiate a hearing, please contact the school principal
I have received a copy of the 504 Conference Summary and an explanation of the rights explained above.
Signature of Parent/Guardian Date