Section 504, the ADA, and Public Schools

Section 504 and the ADA

Selection 504 of the Rehabilitation Act of1973 and the Americans with Disabilities Act (ADA) of 1990 are major federal legislative acts that are designed to protect the civil rights of individuals with disabilities. The intent of these two laws is to prevent any form of discrimination against individuals with disabilities who are otherwise qualified. Section 504 applies to entities that receive federal funds, and the ADA applies to virtually every entity except churches and private clubs.

Section 504 and the ADA are beginning to have a major impact on public schools across the United States. Originally, Section 504, which was part of the broader 1973 Rehabilitation Act, was rarely addressed by school personnel to ensure equal educational opportunities. Public Law 94-142, the Education for All Handicapped Children Act, passed in 1975, was the federal legislation that initially resulted in major changes in the way schools served children with disabilities. This law, now called the Individuals with Disabilities Education Act (IDEA), was accompanied by federal funds, was the focal point of schools in serving children with disabilities, and Section 504 and the ADA, which provided no funding, were often considered less important for schools.

Recently, the role played by Section 504 and the ADA in schools has increased substantially; no longer are schools able to ignore these two acts. As parents and other advocates for children with disabilities learn more about Section 504 and the ADA, schools are needing to respond to requests for protections and services under these laws. There are several reasons Section 504 and the ADA have become more prominent in public schools, but the primary reason is that Section 504 and the ADA use a different definition of disability and a different approach to eligibility than does the IDEA, resulting in many children who are not eligible under IDEA being protected by Section 504 and the ADA.

Regardless of the specific reason for the increase in attention to Section 504 and the ADA, more and more parents are beginning to request services and protections under these two acts. As a result, schools must learn the legal requirements of these acts and specific actions and services that are required.

What is Section 504?

Section 504 is civil rights legislation for persons with disabilities. It prohibits discrimination against individuals who meet the definition of disability in the act, and it is applied to entities that receive federal funding. Wegner stated that the primary objective of Congress in enacting Section 504 was to “honor the requirements of ‘simple justice’ by ensuring that federal funds not be expended in a discriminatory fashion&quot. Section 504 is a relatively simple part of the Rehabilitation Act. Section 504 states,

No otherwise qualified individual with a disability … shall solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Schools must afford students with disabilities with equal opportunities “to obtain the same result, to gain the same benefit, or to reach the same level of achievement” as students without disabilities. Section 504 applies only to entities that receive federal funds. Most public schools receive substantial federal funds through their participation in various federally supported activities, and as a result, they must comply with the provisions of Section 504.

What is the ADA?

Like Section 504, the ADA is civil rights legislation for individuals with disabilities. Unlike Section 504, the ADA applies to almost every entity in the United States, regardless of whether it receives federal funds; churches and private clubs are the only two entities that are exempt from the ADA. Therefore, private schools that are not associated with a religious organization have to comply with the provisions of the ADA; these schools may be exempt from Section 504 because they do not receive federal funds.

When the ADA was passed, it was proclaimed in the Chicago Tribune as the Emancipation Proclamation for people with disabilities in America. The ADA contains several titles that focus on various aspects of disability discrimination. Title I prohibits discrimination in employment areas. Title II deals with state and local governmental entities, including schools. Title III targets public accommodations, including hotels, restaurants, department stores, grocery stores, and banks. In all cases, entities covered are required to make the reasonable accommodations or modifications necessary to ensure persons with disabilities access to goods and services.

Eligibility for Section 504 and ADA services and protection

Section 504 and the ADA apply only to persons who are considered to have disabilities, as defined in the acts. As a result, the definition of disability is a critical issue. Eligibility for protections and services under Section 504 and the ADA is not the same as eligibility for IDEA. Key points to use when determining eligibility include the following:

• Eligibility is based on the definition of disability.
• Eligibility is not age restricted, like IDEA, but covers individuals from birth to death.
• Eligibility is not related to specific categories of disabilities, as is IDEA.
• Eligibility is based on the functional impact of a physical or mental impairment.

The definition of otherwise qualified under Section 504 and the ADA

In order for a person to be covered under Section 504 and the ADA, the individual must be otherwise qualified. This means that a person with a disability must be qualified to do something before the presence of a disability can be a factor in discrimination. In other words, if a person with a disability wants to participate in some activity in which the individual is not otherwise qualified to participate, not allowing the person to participate would not be considered discrimination. For example, a 16-year-old boy with attention-deficit/ hyperactivity disorder (ADHD) tries out for the basketball team but cannot dribble, shoot, or pass. As a result, the coach does not allow the boy to play on the team. This is not discrimination under Section 504 or the ADA because the boy is not otherwise qualified to be on the team.

The definition of disability under the IDEA

IDEA defines disability by using a categorical approach. Children are not eligible for services simply because they need services; rather, they must fit into one of the specific categories of disabilities that is recognized in the law, and they must need special education. If a student is not determined to have one of these disabilities, but the student needs special education, then the student is not eligible for services under IDEA. Obviously, many children who could benefit from special education services fail to meet these eligibility criteria and may therefore be excluded from special education programs.

For example, what about students with ADHD or children with severe asthma who do not need special education? What about children who are slow learners but who do not meet the eligibility criteria for intellectual disability? And what about children with learning disabilities but whose discrepancy between ability and achievement is not significant enough to warrant special education? Children with these types of problems may not be considered eligible under the IDEA even though they need some supports.

The definition of disability under Section 504 and the ADA

The definition of disability under Section 504 and the ADA is significantly broader than the definition used in the IDEA. Under 504 and the ADA, a person is considered to have a disability if that person

1. has a physical or mental impairment that substantially limits one or more of such person’s major life activities,
2. has a record of such an impairment, or
3. is regarded as having such an impairment.

The Rehabiliation Act defines a physical or mental impairment as (a) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (b) any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The last part of the definition is similar to the one found in the IDEA. However, the first part, although including some of the categories found in the IDEA, goes well beyond those specific areas in defining disability.

To be eligible for special education under the IDEA, a student must have a categorical disability that results in the student’s needing special education. Section 504 and the ADA require that the person have a physical or mental impairment that substantially limits one or more of the person’s major life activities.

The second part of the definition relates to the impact of the disability or condition on a major life activity. Section 504 and the ADA define a major life activity using a very functional approach. Major life activities include a wide variety of daily activities, such as the following: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Federal court cases have added additional major life activities, including sitting, stooping, reaching, and eating. Basically, any function that is performed routinely by individuals is considered a major life activity.

For many school-aged children, the major life activity affected is learning. This is very similar to the IDEA requirement that the disability results in the student’s needing special education. However, learning does not have to be the major life activity affected in order for an individual to be eligible for protections and services under Section 504 and the ADA.

Individuals need not currently have a physical or mental impairment in order to be covered under Section 504 and the ADA; they may be covered if they have a record of having such an impairment or if they are simply regarded as having such an impairment. These two categories are generally not the focus for school-aged children; they are more likely to deal with individuals in employment or community situations. Still, there may be instances when children are protected under Section 504 and the ADA because of their being regarded as having an impairment or their having a record of such an impairment.

Determining substantial limitation

In order to be eligible for services under Section 504 and the ADA, a child must have a physical or mental impairment that substantially limits a major life activity. The determination of whether a disability substantially limits a major life activity is subjective, and Section 504 and the ADA do not provide any operational criteria of substantial limitation. School personnel must use their collective, professional judgment to make this determination.

Substantially limits can be defined as

1. unable to perform a major life activity that the average person in the general population can perform, or
2. significantly restricted as to the condition, manner, or duration for which an individual can perform a particular major life activity as compared to the condition, manner, or duration for which the average person in the general population can perform that same major life activity.

The standard that should be used in determining substantial limitation, therefore, is average performance in the general population. If a student with ADHD is performing as well as average children in his grade level, and the student does not have to do significantly extra work to achieve at this level, it is unlikely that there is a substantial limitation in learning. This standard applies, regardless of the intellectual ability of the student.

When determining whether the substantial limitation requirement is met, school personnel should consider the nature and severity of the impairment, the duration of the impairment, and any long-term impact of the impairment. Schools should remember that simply because a student is considered for Section 504 and ADA services and protections does not mean the student is eligible. Likewise, just because a student is determined to have a disability does not automatically result in eligibility for Section 504 and ADA services and protections; a substantial limitation must result from the physical or mental impairment.

As previously noted in the definition of substantial limitation, the standard used to determine whether a physical or mental impairment results in a substantial limitation is average performance in the general population. Therefore, the standard used is not the optimal performance level for a person but the average performance of individuals found in the general population. For example, a child with an IQ of 140 who is achieving as well as average children are achieving does not have a substantial limitation in learning. This may be difficult for parents to understand, but the standard is average performance in the general population.

Individuals covered under section 504 and the ADA

Because the definition of disability drives eligibility for protections and services under Section 504 and the ADA, it is the basis for determining who receives services and protections. Because the definition used in these two laws differs significantly from the definition used in the IDEA, different individuals are covered than would be eligible for special education services under the IDEA. Martin suggested that the following types of disabilities are likely covered under Section 504 and the ADA but not under the IDEA:

• Students with attention-deficit disorder or ADHD,
• Students with learning disabilities who do not manifest a significant discrepancy between intellectual ability and achievement,
• Students who are transitioned out of special education programs,
• Students who are considered to be socially maladjusted,
• Students who have a history of drug and alcohol abuse,
• Students with health needs, and
• Students with communicable diseases, such as AIDS.

Because the definition of disability and the requirements for eligibility under IDEA are more restrictive than those used in Section 504 and the ADA, all children eligible for services under the IDEA are eligible for protection under Section 504 and the ADA. However, there are many children eligible for services and protections under Section 504 and the ADA who are not eligible for services under the IDEA.

Although children served under the IDEA do not need an individual accommodation plan under Section 504 and the ADA, there may be instances in which discrimination under Section 504 and the ADA is an issue. For example, extracurricular activities, such as field trips, might result in a Section 504/ADA protection for students served under IDEA.

Requirements of Section 504 and the ADA

Two primary requirements of Section 504 and the ADA affect school-aged children who have been determined to be eligible for protection and services. These include nondiscrimination and the provision of a free, appropriate public education (FAPE). In addition to these two requirements, schools must provide procedural safeguards to children and their families while providing services and protection.

Students with disabilities should be allowed to participate in all activities that are available for students without disabilities. They should be allowed to participate in the same academic curriculum as well as in nonacademic extracurricular activities. Students protected by Section 504 and the ADA must have equal access to health services, recreational activities, athletics, student employment, clubs, specific courses, and field trips.

When granting access to extracurricular activities, schools can use the “otherwise qualified” criterion. In other words, if a student is not otherwise qualified to participate in an extracurricular activity, then the school is not discriminating against the student when it denies the student participation. On the other hand, if a student is otherwise qualified, then the school would be required to make accommodations and modifications to allow the student to participate.

In general, schools must do numerous things to meet the requirements of Section 504 and the ADA. For the most part, these actions are based on common sense and treating individuals with disabilities fairly. If schools approach the implementation of Section 504 and the ADA using these guidelines, then most instances of potential discrimination can be dealt with simply and without a great deal of expense. The Office of Civil Rights (OCR; 1989a) described the following specific requirements for schools regarding Section 504:

• Undertake annually to identify and locate all children with disabilities who are unserved;
• Provide a “free appropriate public education” to each student with disabilities, regardless of the nature or severity of the disability. This means providing regular or special education and related aids and services designed to meet the individual educational needs of disabled persons as adequately as the needs of nondisabled persons are met; Ensure that each student with disabilities is educated with nondisabled students to the maximum extent appropriate;
• Establish nondiscriminatory evaluation and placement procedures to avoid the inappropriate education that may result from the misclassification or misplacement of students;
• Establish procedural safeguards to enable parents and guardians to participate meaningfully in decisions regarding the evaluation and placement of their children; and
• Afford children with disabilities an equal opportunity to participate in nonacademic and extra-curricular services and activities.

FAPE

Section 504 and the ADA, similarly to the IDEA, require that schools provide students with disabilities with a FAPE. Section 504 defines FAPE as the provision of general or special education and related aids and services that are

• designed to meet individual educational needs of persons with disabilities as well as the needs of a nonhandicapped person are met, and
• based on adherence to procedural safeguards outlined in the law.

Meeting the needs of students with disabilities as well as the needs of students without disabilities is a very broadly stated requirement. It can include a variety of services, including education in general education classes, education in general education classes with supplementary aids, and special education and related services outside the general education setting.

The specific actions that schools must take in order to comply with the FAPE requirement of Section 504 and the ADA vary with each child. In most situations, simple, inexpensive accommodations and, modifications are sufficient. Regardless of the specific action needed, however, schools are required to ensure that students with disabilities under Section 504 and the ADA are provided with a FAPE.

An appropriate education under Section 504 includes many different components: using nondiscriminatory evaluation and placement procedures, meeting the needs of students with disabilities as well as the needs of nondisabled students, serving students with disabilities alongside nondisabled students, and providing due process provisions. OCR further emphasized that in order for an educational program to be appropriate, it must be designed to meet the individual needs of students.

Section 504 and the ADA also require that related services be provided for students with disabilities if these services are required to meet the student’s educational needs as well as the educational needs of other students. Unlike the IDEA, which defines related services as services that are necessary to enable a student to benefit from special education, related services can be provided under Section 504 and the ADA to children who do not receive any other special education services or interventions. For example, a student may receive physical therapy and no other special service under Section 504. The key in this type of example is that the student will be discriminated against, on the basis of a disability, if physical therapy is not provided. A student who can still access an appropriate education program without physical therapy may not be eligible for physical therapy under Section 504 and the ADA. On the other hand, if the physical therapy is required to enable the child to access an education program, then physical therapy may be required, even if the student does not need any additional special education services.

Section 504 and the ADA, like the IDEA, require that students with disabilities be educated with their nondisabled peers, to the maximum extent appropriate, while meeting the needs of the students with disabilities. This is part of the FAPE requirement of Section 504 and the ADA. Schools should always place students with disabilities with their nondisabled peers, unless the school can demonstrate that the student’s education program cannot be achieved satisfactorily, with or without supplementary aids and services, in the general education setting. This mandate also applies to extracurricular activities. It would be inappropriate, for example, to send a student with a mobility impairment on a field trip on a wheelchair-accessible bus by herself. Nondisabled students would need to ride on the wheelchair-accessible bus in order to meet the inclusion requirement of Section 504 and the ADA.

Providing accommodations for students protected under Section 504 and the ADA is one way schools can provide an appropriate education. Just as an appropriate education is based on an individual student’s needs in IDEA programs, accommodations provided under Section 504 and the ADA are determined on an individual basis. Providing the same accommodations to a group of students will not meet this requirement.

Although schools do not have to develop Individualized Education Programs (IEPs) for students served under Section 504, they do have to develop individual plans for students under Section 504. Section 504 does not specify the contents of the plan, but the plan must be designed to meet the needs of individual students, including specific accommodations and modifications that are necessary to meet the FAPE requirement.

Services in public schools

Students with disabilities who are protected under Section 504 and the ADA but are not eligible for IDEA services must be afforded a FAPE through a designated process. This includes referral, evaluation, program planning, placement, and reevaluation. Schools should establish policies that spell out steps that should be taken to provide these services. Schools can use the same process they use with IDEA, or they can develop a set of procedures that is specific to students who are protected by Section 504 and the ADA.

Referral

Anyone can refer children for Section 504 and ADA services. Teachers and parents make most of the referrals. As with the IDEA, general education teachers in primary grades are in an excellent position to make referrals for Section 504 and ADA services and protections. Unfortunately, these teachers are often not aware of the provisions of Section 504 and the ADA, nor do they know which students should be referred for Section 504 and ADA services. These are reasons schools need to have policies for providing Section 504 and ADA services as well as training programs for general education teachers.

Although it is impossible to specify all situations in which children should be referred for Section 504 and ADA services, there are several situations that should result in automatic consideration of a student for Section 504 and ADA services. These include the following (Council of Administrators of Special Education, n.d.):

• when a student is referred for IDEA services but the decision is to not evaluate;
• when a student is evaluated for IDEA services but is determined to be not eligible;
• when a student is suspected of having any disability;
• when a student continues to display behavior problems;
• when a student has a major health problem;
• when a student is expelled or suspended;
• when a student seems to be having problems that cannot be explained;
• When a parent requests consideration for Section 504 and the ADA services; and
• When a teacher requests consideration for Section 504 and the ADA services.

Just because a child is referred for consideration for Section 504 and ADA services does not mean the child will be determined to be eligible. Referral is simply a first step in the process. Often, parents think that if they bring the school a diagnosis from a physician stating that a child has a particular disability, such as ADD/ADHD, the school will have to serve the child under Section 504 and the ADA. This is simply not the case. A diagnosis by anyone is only part of the referral. Although physicians and other health professionals may make various diagnoses, school personnel make the eligibility determination. Parents can always contest the decision through due process hearings, but the determination regarding eligibility rests with the school.

After a child has been referred, either by school personnel or parents, the school is obligated to consider the referral. A group of knowledgeable people should come together to decide whether they think the child is eligible. Schools do not have to evaluate a student who has been referred if school personnel do not believe that the child is eligible under Section 504 and the ADA.

Evaluation

If the referral committee deems it likely that the child is eligible for Section 504 and ADA services, the school must conduct an evaluation to determine whether the student is eligible for Section 504 and ADA services and what services would be required to ensure a FAPE. The evaluation requirements for Section 504 and the ADA differ from those found in IDEA. Martin summarized the requirements of Section 504 regarding evaluations as requiring that schools:

1. determine whether a physical or mental impairment is present,
2. determine whether the impairment results in a substantial limitation of a major life activity, and
3. determine the types of accommodations that are required to enable the student to receive a FAPE.

Observations, anecdotal information., and judgments are considered legitimate sources of assessment data. Normreferenced, standardized tests are not required as part of the evaluation. If data from these sources are considered necessary to make eligibility decisions and decisions regarding accommodations and modifications, then they should be used, but only if the team needs such information. If school personnel believe that a medical evaluation or another evaluation from a specialist is needed in order to make an eligibility decision or to determine accommodations, then the school is obligated to obtain the evaluation and pay for the evaluation.

Eligibility determination and program development

School personnel should use all available assessment information to determine which students are eligible under Section 504 and the ADA. The eligibility decision should be made by a group of knowledgeable individuals, including individuals who know the child, individuals who are knowledgeable about the assessment procedures, and individuals who are aware of the placement options.

Unlike with the IDEA, the eligibility determination of students for Section 504 and ADA services and protection is not based on a categorical approach to disabilities. Rather, the committee must decide whether there is a substantial limitation to a major or life activity resulting from a physical or mental impairment. This is a subjective, professional judgment. As previously noted, there are some guidelines in determining substantial limitation, but ultimately it is a professional judgment decision. Although some educators may be uncomfortable making these decisions without specific guidelines, educators can make decisions based on their experience and judgment and are not restricted by regulations or norm-referenced test scores.

When determining whether there is a substantial limitation to a major life activity, school personnel should consider the duration and severity of the impairment. Smith and Patton developed a process for assisting school personnel in making this decision. This procedure uses a Likert scale to determine the degree of severity and duration for various functional limitations. The use of such a process can greatly facilitate the arrival at a defensible decision regarding eligibility for Section 504 and ADA services. School personnel must remember that the decision is based on their professional judgment about the child’s functioning. Test scores, numerical indices, and discrepancy formulas should not used as the primary determining factors.

After a child has been determined to be eligible for Section 504/ADA services and protections, an individual plan must be developed. Unlike with the IDEA, with Section 504 and the ADA, an IEP is not required; however, a written plan is required. Schools should have Section 504/ADA accommodation plans for teachers to use. These plans should be simple and easy to complete, yet they should be able to include the important information that will enable school personnel to implement the necessary accommodations to meet individual needs. A sample Section 504/ADA plan is shown in Figure 2.

Accommodations and modifications

For schools to provide an appropriate education for students who are protected under Section 504 and the ADA, accommodations and modifications are generally necessary. Accommodations can be implemented in special education classrooms or general education classes. The vast majority of accommodations and modifications for students served under Section 504 and the ADA occur in general education classrooms. Examples include accommodations in seating arrangements, testing modifications, homework modifications, the use of readers or taped materials, and accommodations in attendance policies.

For the most part, accommodations for this group of students are inexpensive, commonsense modifications that help give students equal access to learning and extracurricular activities. Good teachers have used these types of accommodations and modifications for years.

Due process procedures and section 504

Due process safeguards have long been a strong component of the IDEA. These safeguards give students with disabilities and their parents extensive rights. Schools that serve students under Section 504 and the ADA are also required to establish and implement procedural safeguards related to the identification, evaluation, or educational placement of children (Zirkel & Kincaid, 1994). These safeguards must include the following:

• notice,
• an opportunity for parents or guardians of the student to examine relevant records,
• an impartial hearing, and
• a review procedure.

One of the first things schools need to do when dealing with a child who has been referred for Section 504 and ADA services is to notify parents of the referral and of their procedural rights.

Related to due process, Section 504 and the ADA require that schools establish a grievance procedure for parties who feel as though they have been discriminated against. Parents who feel that their child has been discriminated against under Section 504 and the ADA can file a grievance with the school, file a complaint with OCR, request a due process hearing, or file suit in federal court. Complaints have to be filed within 180 days of the reputed violation. Complaints are filed with the U.S. Department of Education and should be sent to the OCR of the Department of Education in the region where the school district is located. If parents file a complaint regarding Section 504 and ADA services, the school district must have in place an impartial hearing procedure similar to the one required by the IDEA. This opportunity must be afforded parents if they choose an administrative appeal rather than immediate court action.

Evaluation Data

FIGURE 1. Section 504 eligibility determination form (71kb PDF)*

Discipline issues, section 504, and the ADA

Students served under Section 504 and the ADA are treated similarly to students served under the IDEA with regard to discipline. First, these students can definitely be disciplined; rules and standards can be - applied to these students just as they are applied to nondisabled students. The important thing to consider is that students served under Section 504 and the ADA have an equal opportunity to be successful with classroom rules and behavioral regulations. In order to ensure this with some students, a behavior intervention plan may be necessary. Disciplinary procedures for students under Section 504 and the ADA are similar to those under IDEA. Expulsion or suspensions of 10 or more days are considered a change of placement and require the same procedural requirements as the IDEA. Therefore, before a student can be suspended or expelled for more than 10 days, a manifest determination must be made. If a manifest determination shows no relationship between the behavior and disability, then the student can be disciplined as any other student. If a manifest determination shows that there is a relationship between the behavior and disability, then the student cannot be expelled or suspended; the school should consider the appropriateness of the current program and consider appropriate changes.

Name: _______________________ School/Class: ________________ Teacher: _____________________ Date of Plan: ________________ General Strenghts: General Weaknesses: Accommodation 1 Class: Accommodation(s): Person Responsible for Implementing Accommodation: Accommodation 2 Class: Accommodation(s): Person Responsible for Implementing Accommodation: Accommodation 3 Class: Accommodation(s): Person Responsible for Implementing Accommodation: Individuals Participating in Development of Plan:   FIGURE 2. Sample accommodation plan.

Discussion

Section 504 and the ADA are civil rights acts for persons with disabilities. Section 504 applies to entities that receive federal funds, and the ADA applies to virtually every entity in the country except churches and private clubs. Schools that receive federal funds must comply with both Section 504 and the ADA.

Because Section 504 and the ADA use a different definition of disability than the one used in the IDEA, many children who are not protected under the IDEA are eligible for protection and services under Section 504 and the ADA. For these children, schools must provide a FAPE; in other words, they must meet the educational needs of these children as well as they meet the educational needs of nondisabled children. This requires referral, evaluation, individual planning, and the provision of due process safeguards for children and their families.

Tom E. C. Smith, EdD, is professor of special education at the University of Arkansas at Little Rock. His research and professional interests focus on Section 504 and the Americans with Disabilities Act.