Section 504 of the Rehabilitation Act: Overview

ACDL News, Disability Law, Education No comments

By Jessica Jansepar Ross, Esq.

Section 504 of the Rehabilitation Act (Section 504) prohibits disability-related discrimination by entities that receive federal funds, such as public school districts and charter schools. Today we will focus on the general requirements of Section 504, including who it protects and what it requires, and parents’ options if they believe that their child’s rights have been violated. Section 504 applies to all aspects of the school experience, including academics, extracurricular activities, and athletics.

In K-12 education, Section 504 1) requires that school districts provide students with disabilities with a Free and Appropriate Public Education (FAPE) and 2) broadly prohibits discrimination against people with disabilities.

Who does Section 504 protect?

Section 504 protects students[1] who meet the law’s definition of “disability,” meaning that they have a “physical or mental impairment that substantially limits one or more major life activities.” It also protects students who have a “record of” having a disability or are “regarded as” having a disability and are treated adversely, even if they don’t actually have a disability. For a more complete discussion of the definition of disability under Section 504, check out the U.S. Department of Education, Office for Civil Rights’(OCR)’s 504 FAQ (which we also reference throughout this blog).

Section 504 does not have “eligibility categories” the way that the Individuals with Disabilities Education Act (IDEA) does. A student may meet the definition of disability under Section 504, but not qualify for an Individualized Education Plan (IEP) under the IDEA because they do not fit into one of the eligibility categories, or because they do not require specialized instruction. Students who qualify for protection under IDEA also meet the definition of “disability” under Section 504.

What is the FAPE standard under Section 504?

Eligible students under 504 are entitled to an education that meets their individual educational needs as adequately as the needs of students without disabilities are met. This may include a combination of regular and special education as well as related aids and services.

Do the Individuals with Disabilities Act (IDEA) and Section 504 have the same procedural requirements?

No. Under Section 504, school districts are required to determine eligibility, conduct periodic evaluations, and develop procedural safeguards to enable parents to challenge the district’s actions regarding the student’s educational services. Section 504 does not have the same detailed timeframes and other requirements contained in IDEA.[2]  However, generally, a school district may follow many of the IDEA procedures in order to comply with the Section 504 requirements. For example, even though 504 plans are not required to be in writing, it is best practice to put the 504 plan in writing so that both the school team and parents understand the plan. Often, school districts will use the same or a similar form to develop 504 plans as they use for IEPs under IDEA.

What conduct is prohibited under Section 504?

Examples include:

  • Failure to provide reasonable modifications to policies and practices, such as allowing an individual who is blind to use their service dog on campus, or allowing additional time to complete tests for a student with a learning disability.
  • Discriminatory exclusion from participation in activities, such as field trips.
  • Retaliation and intimidation (for example, against the parent or student for requesting additional special education services).
  • Bullying, including the failure of the school district to address bullying by other students on any basis, which can result in the denial of FAPE.
  • Disability-related harassment.
  • Abuse and neglect.
  • Discriminatory discipline.

What can a parent do if they believe their child’s rights under Section 504 have been violated?

It depends on the type of violation, but generally, parent’s options outside of informal attempts to address problems with the school district are to 1) file a complaint with the U.S. Department of Education, Office for Civil Rights, 2) request an investigation or impartial hearing from the school district, or 3) file a lawsuit.

Parents may file disability discrimination complaints for investigation and resolution with OCR. This process will be discussed in Part 2 of this series. Additionally, under Section 504, school districts are required to develop procedural safeguards that include the opportunity to review relevant records, participate in an impartial hearing, and a review procedure.[3] As OCR generally does not evaluate the appropriateness of a 504 plan as long as required procedures have taken place, an impartial hearing by the district is a primary method for resolving FAPE disputes. [4] Issues regarding these hearings will be discussed in Part 3 of this series.

Lastly, parents may file a private lawsuit against the school district without exhausting administrative remedies (such as filing a complaint with OCR) first. There are timelines that apply to these options.

Monday’s Tip-of-the-Day: Section 504 Part 2: OCR’s Complaint Process

 

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[1] Note: Section 504 protects other people with disabilities, such as parents, teachers, and visitors to school campuses.

[2] U.S. Department of Education, Office of Civil Rights, Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, at pp.11, available at https://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf.

[3] U.S. Department of Education, Office of Civil Rights, Protecting Students with Disabilities, Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, No. 45, available at https://www2.ed.gov/about/offices/list/ocr/504faq.html #45.

[4] Id. at No. 5.

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