Section 504 of the Rehabilitation Act of 1973 (Pub. L. No. 93- 112) is a broad civil rights statute applicable to public school systems. It is important that board members, administrators, and teachers be familiar with the obligations imposed by Section 504, since a violation of the act could subject a system to a loss of federal funding, as well as civil lawsuits.
This article discusses the origin of Section 504 and provides an overview of the key components of Section 504's implementing regulations.
Historical Origins
The Rehabilitation Act of 1973 was the first federal statute that prohibited discrimination on the basis of disability. Its enactment followed other anti-discrimination statutes of the era, such as those directed toward race and gender. The act is not exclusively a special education law, nor is it limited in its application to public schools.
The act's initial purpose was to provide job opportunity and rehabilitation to disabled adults.
However, the last paragraph of the act extended an anti-discrimination mandate to all programs
and activities receiving federal funding. That particular paragraph, now commonly referred to as
"Section 504," provided as follows:
| No otherwise qualified individual with a disability . . . shall solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . . .(29 U.S.C. § 794(a) (1973)). |
As a recipient of federal funds, public schools necessarily became subject to the anti-discrimination mandate of Section 504.
The U.S. Department of Health, Education and Welfare, in its attempt to effectuate the anti-discrimination mandate of Section 504 in the nation's public schools, construed Section 504 broadly to require public schools to create special programs and educational placements for disabled students. Despite this affirmative mandate, no additional federal funding has ever been provided to assist schools in complying with the statute. Instead, the U.S. Department of Education conditions federal funding upon a school's continued compliance with Section 504.
As presently applied in the public school context, Section 504 of the act contains a "free appropriate public education" component somewhat similar to the Individuals with Disabilities Education Act (IDEA), as well as an anti-discrimination component similar to the Americans with Disabilities Act (ADA).
Over-identification
Over-identification of Section 504 students is a substantial problem in our schools. Many times it is the result of educators failing to apply the appropriate legal standard for eligibility under Section 504. Other times, well-meaning educators give in to aggressive parents with hidden agendas for seeking Section 504 eligibility for their child, such as securing disability benefits or accommodations on a college entrance exam.
Over-identification not only violates the rights of the student at issue, but it also presents significant and costly consequences for schools. For every student deemed eligible under Section 504, a school subjects itself to burdensome paperwork and documentation, expensive accommodations and services, due-process hearings, litigation expenses, lawsuits and so forth. Schools are also significantly limited in their ability to apply disciplinary and other school rules to these students. For these reasons, schools should use their limited resources to provide Section 504 services and protections to only those students who truly qualify for eligibility.
There is no doubt some disabled students, while not qualifying for Section 504 or IDEA, would still benefit from reasonable classroom accommodations and services. Schools must make clear to parents that such accommodations and services can just as easily be provided by a school's building-based student support team and that good general education teachers provide needed classroom accommodations all the time without the necessity of a formal Section 504 plan.
Eligibility Criteria
Not every student with a recognized disability is eligible under Section 504. Many private physicians and psychologists liberally provide disability labels to students with little supporting evidence of an adverse educational impact. Schools must remember that they are not beholden to a physician's opinion regarding eligibility. Section 504 provides its own criteria for what constitutes a qualifying disability. A disabled student must fit into one of the three following categories:
The presence of (a) a physical or mental impairment, (b) a substantial limitation, and (c) a major life activity each must be independently evaluated and confirmed by a school prior to a finding of Section 504 eligibility.
A. Physical or Mental Impairment
Almost any physiological or
psychological condition can satisfy the initial requirement of an "impairment." But,
homosexuality, bisexuality, compulsive gambling, kleptomania, pyromania, and current drug
addiction are excluded as impairments under Section 504. Likewise, pregnancy is generally not
considered an impairment; however, complications from pregnancy may qualify.
Although Section 504 allows for broad leeway, schools must ensure that an actual impairment is responsible for a student's educational deficits. A student with an educational deficit caused by economic, cultural or environmental disadvantages should not be considered to have an impairment under Section 504, nor should a student with educational deficits due to limited English proficiency.
B. Substantially Limits
The decisive inquiry in most Section 504 eligibility
determinations is whether the impairment at issue is substantially limiting. Unfortunately, neither
Section 504 nor its interpretive regulations define this phrase. OCR has stated that the meaning
should be determined by each local school system and not by OCR.
Recent federal case law, utilizing the ADA definition of substantial limitation, has held that students earning average grades and exhibiting age-appropriate behavior do not qualify for Section 504 eligibility, unless the underlying impairment is medical. Such case law establishes that eligibility is improper for at-risk students or for students with only mild to moderate limitations secondary to an impairment. A student not reaching his perceived academic potential is not a sufficient basis for Section 504 eligibility. A school may properly consider whether mitigating factors such as pre-referral interventions, medication, eye glasses, parent support or hard work has eliminated the existence of a substantially limiting impairment.
Moreover, there is no need to qualify a student merely to provide an accommodation that the school already provides for all regular education students. For example, Section 504 eligibility is likely not necessary for a disabled student whose only needed accommodation at school is the routine dispensing of medication. That can easily be done under the schoolwide med-ication policy or by providing the student with an individual health plan.
C. Major Life Activities
For purposes of Section 504 eligibility, "major life
activities" may include walking, talking, seeing, hearing, speaking, breathing, learning and
working. Section 504 does not provide an exhaustive list of major life activities. However, a
major life activity must be interpreted globally and broadly. For example, a student with a deficit
in one isolated academic sub-area would likely not have a substantial limitation in the major life
activity of learning.
Free Appropriate Public Education
Public schools are obligated to provide a free and appropriate public education to those Section 504 eligible students with a current impairment. Such a student is entitled to an evaluation at no cost to the parent. A Section 504 plan must be developed by individuals knowledgeable about the student, the meaning of evaluation data and the placement options available to the student. At a minimum, the plan is to document the accommodations and educational services being provided. If needed, behavior intervention and strategies are to be incorporated. The Section 504 plan is to be developed and implemented consistent with the procedural framework of Section 504. An impartial due-process hearing is to be provided for a parent who wishes to challenge the plans or evaluation's appropriateness.
Disciplinary Procedural Protections
Students eligible under Section 504 are also entitled to significant disciplinary procedural protections, similar to those provided to IDEA students. Generally, Section 504 students may not be subjected to a disciplinary change in placement for more than 10 school days in a school year, unless the student's Section 504 team concludes that the behavior at issue is not a manifestation of the student's disability. A series of short-term removals over the course of a school year that exceed 10 school days may constitute an impermissible pattern of exclusion. Unlike the IDEA, the Section 504 regulations do not provide a stay-put provision maintaining the student's current placement pending the resolution of due-process disputes between parents and schools. (However, OCR has stated that Section 504 contains an implicit stay-put mandate.) A Section 504 student disciplined for drug use loses all procedural protections under Section 504 and may be disciplined pursuant to the school's normal disciplinary code of conduct.
Non-Discrimination Mandate
Public school systems must provide Section 504 students with an equal opportunity for participation in extracurricular and non-academic activities. In situations where a disabled student cannot meet all the essential eligibility requirements, the school must to consider whether a reasonable accommodation can be provided in order to qualify the student. Reviewing courts have found accommodations such as the provision of an aide, interpreter and nurse, a waiver of sports eligibility rules, and exceptions from disciplinary bars upon participation in extra-curricular activities as reasonable accommodations. However, in those situations where initial eligibility for an activity is based on competitive standards, there is no obligation for a school to waive those standards for a disabled student.
Accessibility Requirements
Section 504 regulations mandate that students with physical disabilities be provided an equal opportunity for access to school facilities. Facilities constructed before June 3, 1977, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. So long as the service, program, or activity as a whole is accessible, school systems are not required to make every older building fully accessible to disabled students. However, for facilities constructed after June 3, 1977, a school's facilities as a whole, as well as each part of each facility, must be readily accessible to and usable by disabled individuals.
Compliance with Section 504 can be challenging and costly to a public school system. However, by making appropriate eligibility decisions and being cognizant of the obligations it imposes, schools can fully implement the protections and avoid costly lawsuits.
Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.
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