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The purpose of this handout is to describe the obligations of public schools
under Section 504 of the Rehabilitation Act and the Americans with
Disabilities Act (ADA), as distinguished from the Individuals with
Disabilities Education Act (IDEA).
Background
Section 504 is civil rights legislation and focuses on nondiscrimination by
requiring that federally-funded programs provide people with disabilities
the same access to the full range of their programs' activities as they
provide people who do not have disabilities. Because they receive federal
funding, public schools cannot exclude a student with a disability from
participating in any part of school life or the enjoyment of benefits
offered by school programs because of the student's disability. In order to
ensure that students with disabilities have the same access to education as
nondisabled students, school districts must provide necessary regular or
special education and related aids and services to students who qualify
under Section 504. Congress did not provide any funding to schools to help
them come into compliance with the nondiscrimination requirements of Section
504. Instead, it chose to require that public schools comply with Section
504 as a condition of receiving future federal funds for school programs
(such as special education and bilingual education).
A few years later, Congress passed the Education of the Handicapped Act
(also known as "PL 94-142," and now entitled the Individuals with
Disabilities Education Act). This act is funding legislation. In exchange
for funds to supplement their services to students with certain types of
disabilities, state and local education agencies agree to follow a broad
range of requirements related to the identification, evaluation, placement,
and provision of free appropriate public education. (A "local education
agency" is a school district; the state education agency in Texas is the
Texas Education Agency.)
Many years later, Congress passed the Americans with Disabilities Act (ADA),
extending many of the protections of Section 504 (which applied almost
exclusively to public entities) to most private entities. The ADA did little
to change public schools' obligations to provide educational services to
students with disabilities in nondiscriminatory ways. Title II of the ADA,
which applies to public schools, more or less reinforces the requirements of
Section 504.
Eligibility for protection under Section 504
Who is "an otherwise qualified individual with a disability?" Eligibility
for protection under Section 504 and IDEA differ. Section 504 does not list
specific disabilities that are covered, while IDEA limits its coverage to a
relatively small, specific list of disabilities. Section 504 does not list
specific disabilities because potentially any disability can be covered as
long as it substantially limits one or more major life activities.
Additionally, in order to be eligible for services under IDEA, the student
must require special education; however, a student may be eligible for
protection under Section 504 even if the student only requires a
supplementary aid such as access to a computer with specialized software.
Therefore, a student may have a disability within the meaning of Section 504
even though the student may not be eligible for special education services
under IDEA.
People who have a record of an impairment or are regarded as having an
impairment are also protected from discrimination under Section 504. For
example, a student with a seizure disorder that is well controlled with
medication may not need any accommodations to participate in educational
programs. However, that student may still be regarded as having a
disability. Therefore, the school cannot discriminate against this student
by excluding the student from activities, such as athletics, because of the
seizure disorder.
What is a major life activity?
Major life activities are "those basic activities that the average person in
the general population can perform with little or no difficulty." Major life
activities include, for example, caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, working and learning.
A substantial limitation in any major life activity (not just in the area of
learning) makes a student eligible for protection under Section 504 if
accommodations would be necessary for the student to be in school. For
instance, a child may have very severe asthma (affecting the major life
activity of breathing) that requires regular medication and regular use of
an inhaler while in school. Without regular administration of the medication
and inhaler, the child cannot remain in school.
What is a substantial limitation?
There is no specific, objective "test" for determining whether or not a
student's impairment "substantially limits" a major life activity.
Therefore, when determining whether the student has a substantial
limitation, schools must consider more than just whether the student has
passing grades. The effects of the impairment on a student's ability to
participate in nonacademic and extracurricular activities must also be taken
into account. Additionally, behavior related to the student's disability may
be considered to substantially limit the student's ability to learn. For
example, if the behavior results in frequent removals from class, this might
be considered to substantially limit the student's participation in the
overall educational program.
Evaluation under Section 504
Public schools have a responsibility to locate and identify all students who
may possibly have disabilities. At least once a year, schools must take
steps to notify students with disabilities and their parents of the schools'
responsibilities to provide such students with free appropriate public
education.
Students identified through the school's location and identification efforts
should be referred for evaluation to determine whether they may have an
impairment which substantially limits a major life activity and might result
in a need for either regular education with supplementary aids or services
or for special education and related services. Under both Section 504 and
IDEA, parents must be given notice of the district's desire to evaluate
their child. However, their written consent is not required under Section
504 if the student is not also being evaluated to determine IDEA
eligibility. [Under Texas law, written parental consent is required before
any psychological exam or treatment.]
Evaluation and placement decisions under Section 504 are made by a team of
persons who are knowledgeable about the child, the meaning of evaluation
data, and placement options. The titles of the school professionals who must
make up the team are not specified, and parents are not required to be
members (as they are under IDEA) but, as persons who are knowledgeable about
the child, parents should request to be members of the team. In designing
and considering evaluations of students with disabilities, the team must
draw upon information from a variety of documented sources. If formal tests
are to be part of the evaluation, they must be administered by trained
professionals.
Services under Section 504
The plan for the student's accommodations, modifications, aids, and/or
supports is developed by a team of knowledgeable persons, including the
parents, and is similar in purpose to the Individualized Education Program (IEP)
created by an Admission, Review, and Dismissal (ARD) Committee for a student
receiving special education services under IDEA. A plan under Section 504
will identify the services that the student needs in order to receive a free
appropriate public education. "Free" means at no cost to the parent, except
for those costs which apply to students without disabilities (such as costs
of field trips). "Appropriate" means the combination of regular education
and special education, including individually designed modifications and
supports which provide the student with an equal opportunity to receive
benefit in school. Some examples of services and supports include: repeating
and simplifying instructions; providing visual instructions; providing
behavioral supports; modifying the administration of tests; providing tape
recorders, computers, and audio-visual equipment; modifying textbooks and
assignments; note-taking assistance; providing therapies such as speech
therapy, occupational therapy, and physical therapy; and administration of
medication.
Placement under Section 504
The Section 504 plan also describes the student's placement. Both IDEA and
Section 504 begin with the presumption that the placement for students with
disabilities will be in regular classrooms with peers of the same
chronological age (the "least restrictive environment") unless another
setting is necessary for the student to receive a free appropriate public
education. For another setting to be necessary, the school must be able to
show that the regular classroom could not be made appropriate for the
student with disabilities by the use of aids and services. In other words,
the school district must first provide all necessary aids and services in
the regular classroom before proposing that the student be educated in a
more restrictive setting. This also applies to students with disabilities
which substantially limit their ability to control their behavior. These
students may need specially designed behavior intervention plans in the
regular classroom to reduce disruptive behaviors, thereby allowing them to
be educated in the least restrictive environment.
Procedural Safeguards
As under the IDEA, parents of students identified as having disabilities
under Section 504 are entitled to certain procedural safeguards. These
safeguards are not as extensive as those under IDEA. However, schools must
have in place a system for providing parents with notice of evaluation and
placement actions and the opportunity to examine the student's records. The
system must also provide a method for parents to challenge evaluation and
placement procedures and actions through an impartial hearing at which the
parent can be represented by an attorney. (This is not the same as the due
process hearing under IDEA, where the parent requests a hearing through the
Texas Education Agency which then appoints a hearing officer.)
Discipline under Section 504
Students identified as eligible for protection under Section 504 may not be
removed from their educational placement for more than ten school days
unless the team of knowledgeable persons first determines that the behavior
which resulted in the disciplinary infraction was not linked to the
student's disability or to an inappropriate placement. This decision is
called a "manifestation determination." The prohibition against removals of
more than ten school days also applies to shorter removals which
cumulatively total ten (10) school days within a school year and reflect a
pattern of exclusion.
An exception to the prohibition against removing students whose behavior is
linked to their disability is when the offense concerns drugs or alcohol. If
a student with a disability commits an infraction involving illegal drugs or
alcohol, he or she may be disciplined by the school to the same extent that
a student without disabilities would be disciplined for the same infraction
without considering whether the alcohol or drug use is linked to the
student's disability or an inappropriate placement.
For more information about discipline and public schools, please request
handout #125, Discipline under the IDEA Amendments of 1997.
Additional Protections under Section 504 and the ADA
Accessibility
Section 504 and the ADA require that all programs within a school facility
be located so that an individual with disabilities can access them more or
less unassisted. This does not mean that an older building must be
retrofitted so that all parts of the building are readily accessible to and
usable by individuals with disabilities. Programs can remain housed within
an older school (that is, one constructed before June 3, 1977) if they can
be made accessible by such accommodations as re-arranging classrooms and
schedules. For new construction, however, the facility and each part of the
facility, must be readily accessible and usable by persons with
disabilities.
Accessibility also include playgrounds. Even though many school playgrounds
are developed and equipped by private groups (such as Parent-Teacher
Associations), they are still considered to be part of the school and, thus,
are subject to the general accessibility requirements applicable to the
school building. Playgrounds must meet three, general requirements to be
considered accessible to students with disabilities. They must (1) have an
adequate path of travel to and around the playground area on a firm, stable,
and slip-resistant surface; (2) have a variety of equipment and activities
usable by students with a variety of impairments; and (3) have a firm,
stable, slip-resistant, and resilient surface underneath the equipment.
Nonacademic Services
Nonacademic services include after-school programs, field trips, summer
programs, and off-campus programs which are related to other class
activities. Schools may not require that a parent provide an attendant or
transportation (unless all other parents are required to provide
transportation) or attend themselves in order for a student with a
disability to participate in a nonacademic activity. Schools may also not
exclude students with disabilities or charge parents of students with
disabilities more than parents of students without disabilities for
nonacademic activities. School counselors must counsel students with
disabilities to seek the same career objectives as nondisabled students with
similar interests and abilities.
Extracurricular Activities
Students with disabilities must be provided an equal opportunity to
participate in extracurricular activities. This does not mean that they must
be selected for an athletic team or performing arts group, for example, if
they do not "make the team." Students with disabilities, though, must be
provided accommodations if they are necessary for the student to try out or,
if they make the team, to participate. For instance, a school would be
required to provide a student with a hearing impairment with a sign language
interpreter for try-outs and, if he or she makes the team, for practices and
for games (including out-of-town and play-off games). Accommodations are not
required, though, if they result in a fundamental alteration in the nature
of a program or activity.
Reprinted from
Advocacy, Incorporated. Advocacy, Inc. strives to update its
materials on an annual basis, and this handout is based upon the law at the
time it was written. The law changes frequently and is subject to various
interpretations by different courts. Future changes in the law may make some
information in this handout inaccurate. The handout is not intended to and
does not replace an attorney's advice or assistance based on your particular
situation.
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“The only pure and consistent advocates for a child are his or her parents
or family members,” explains Betsy Primm, coordinator of Georgia Learning
Resource Services Metro-North branch. “That doesn’t mean that educators
don’t advocate every day for their students, but year in and year out, that
is a parent’s role.” |
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