Section 504 and Students With Disabilities: An Overview

Written by Jim Wrigley, OAC Attorney, July 1997.
Reviewed and Updated by Jim Wrigley, June 2002.

I. SECTION 504 BACKGROUND

A. What Is Section 504?

Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794, represented the beginning of the national effort to prevent discrimination against people with disabilities. Section 504 provides that: "No otherwise qualified individual with handicaps . . . shall solely by reason of his or her handicap, 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."

The Office of Civil Rights (OCR) within the federal Department of Education is responsible for enforcing Section 504 and Title II of the Americans with Disabilities Act (ADA) with regard to education. OCR interprets Section 504 and ADA requirements identically.

B. Who Is Covered Under Section 504?

The U.S. Department of Education regulations implementing Section 504 concerning elementary and secondary students are located at 34 CFR, Part 104. Under 34 CFR §104.3(j), a "handicapped person" is any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment, or is regarded as having such an inpairment. Learning is considered a major life activity, as are functions such as caring for oneself, performing menial tasks, walking, seeing, hearing, speaking, breathing, and working.

The regulations define "physical or mental impairment" broadly, to include virtually any physiological disorder or condition, cosmetic disfigurement, anatomical loss, or mental or psychological disorder. 34 CFR § 104(j)(2)(i).

C. Discrimination Prohibited

Under the regulations, a recipient of federal funds may not:

  1. Deny a handicapped student the opportunity to participate in or benefit from an aid, benefit, or service that is provided to no nonhandicapped students (such as refusing to grant credit to a student who was frequently absent from school due to a medical condition);
  2. Afford a handicapped student an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others (e.g., providing a shorter school day to handicapped students than to other students without educational justification);
  3. Provide a handicapped student with an aid, benefit, or service that is not as effective as that provided to others;
  4. Provide different or separate aids, benefits, or services to a handicapped student or class of students unless this is necessary in order for the aids, benefits, and services to be as effective as those provided to others (for example, unnecessarily placing students with disabilities in a separate building); or
  5. Otherwise limit a handicapped student in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service. 34 CFR § 104.4(b)(1).
To be deemed equally effective, aids, benefits, or services are not required to produce the same result for handicapped and nonhandicapped students, only the same opportunity. 34 CFR § t 04.4(b)(2).

II. SECTION 504 AND THE INDIVIDUALS WITH DISABILITIES ACT COMPARED

A. Overview

Unlike the Individuals with Disabilities Act (IDEA), 20 USC §§ 1400 et seq., which contains a positive right to a free appropriate public education for children with disabilities, Section 504 is phrased negatively to bar discrimination. However, as one court noted, "as this portion of the Rehabilitation Act has been interpreted, there appear to be few differences, if any, between the IDEA's affirmative duty and Section 504's negative prohibition." Jeremy H. v. by Hunter v. Mt. Lebanon School District, 95 F. 3rd 272, 278-79 (3rd. Cir. 1996) (citation omitted). Although the similarities in the way the two acts are interpreted do overwhelm the differences, there are nonetheless some inportant distinctions. One of the major differences between the two acts is broader eligibility under Section 504. There are also other significant differences, which are discussed below.

B. Section 504 Eligibility Compared with IDEA Eligibility

Section 504 covers a wider spectrum of students with disabilities than does the IDEA. This is because the Section 504 regulations contain an expansive, functional definition of a "handicapped person." Unlike the IDEA, a child does not have to fit within a specific disability category to be entitled to the protections of Section 504.

All children who qualify for services under the IDEA are also covered under Section 504. Therefore, providing services to a child under the IDEA normally satisfies the requirements of Section 504. However, many children who are covered under Section 504 do not qualify under the IDEA.

Many physical conditions may be covered under Section 504 that would not be covered under the IDEA. Under the IDEA, a child's educational performance must be adversely affected by his or her disability, resulting in the need for special education. By contrast, if a child is unable to walk, for example, even if the child's educational performance is unaffected, he or she is covered under Section 504. The child may well require accommodations--for example, accessible services. In addition, a, child may be covered if there is a false perception that he or she has a disability-for example, a child, with the HIV virus. Section 504 also covers children who no longer have an impairment, such as a child who has recovered from cancer.

One important difference is how children with Attention Deficit Disorder (ADD) may be treated under the two acts. ADD is not a listed disability under the IDEA (although in some cases a child with ADD may fit into another category.) Under Section 504, the issue is simply whether the ADD substantially limits the child's ability to learn. See 1/19/94 Letter to Rahall (OCR). 21 Individuals with Disabilities Education Law Reporter (IDELR) 575. Often, accommodations in the classroom such as additional time to take tests may be all that is required for a child with ADD.

III. SECTION 504 REQUIREMENTS

A. Free Appropriate Public Education

The Section 504 regulations require a school district to provide a free appropriate education (FAPE) to each handicapped student in its jurisdiction. An appropriate education is defined as "the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met" and (ii) meet the procedural requirements contained in the regulations. 34 CFR § 104.33(a). A FAPE includes residential placement if required. 34 CFR § 104(c)(3).

The IDEA also contains a FAPE requirement, although it is based upon academic benefit to the student rather than a comparison with the education that nonhandicapped students receive. In most cases, the practical effect of this difference is limited.

School districts cannot cite cost considerations to limit the Section 504 FAPE requirement. According to OCR, because § 104.33(a), requiring FAPE for elementary and secondary students, contains no provision for reasonable modifications, this regulation "requires school districts to meet the individual needs of all students to the same extent, although not necessarily by providing the same programs or services." 8/23/93 Letter to Zirkel (OCR), 20 IDELR 134 (emphasis in original).

B. Evaluations

If a child is believed to be in need of special education or related services, the district must conduct an evaluation before the initial placement or any subsequent placement. 34 CFR § 104.35(a). The Section 504 regulations (34 CFR §104.35(b)) require that, in evaluating the existenice of a disability, a district use tests and other evaluation materials that have been validated and are administered by trained personnel. They must be used to assess specific areas of educational need, not just to provide a general intelligence quotient, and must measure what they purport to measure. In addition, like the IDEA, the Section 504 regulations require a district to:

  1. Draw upon a variety of sources in conducting the evaluation and to establish procedures to ensure that information from all such sources is documented and carefully considered;
  2. Ensure that the placement decision is made by a group of people knowledgeable about the child, the meaning of the evaluation data, and the placement options, and
  3. Ensure that the student is placed with his or her nonhandicapped peers to the maximum extent appropriate. 34 CFR § 104.3 5(b).
Consistent with the IDEA, parental consent is required before an initial Section 504 evaluation. A school district may use the Section 504 due process mechanism to seek to override a parental refusal of consent. See 5/15/95 Letter to Zirkel (OCR), 22 IDELR 667. A significant difference between the two acts is that, under Section 504, a student has no right to an independent evaluation at school district expense.

C. Reevaluations

Section 504 regulations require "periodic" reevaluations for children who have been provided special education or related services. Compliance with the IDEA requirement of a reevaluation every three years also serves as compliance with Section 504. In addition, the student must be reevaluated prior to a significant change in placement. 34 CFR § 104.35(d).

D. Least Restrictive Environment

Both Section 504 and the IDEA require that students be educated with nonhandicapped persons to the maximum extent possible. Under Section 504, a handicapped student must be placed in regular education unless it is demonstrated that the education of the student, even with supplementary aids and services, cannot be achieved satisfactorily. 34 CFR § 104.34(a). The same is true of nonacademic settings such as meals and recess periods. 34 CFR § 104.34(b). In addition, if a district operates a justifiably segregated facility for children with disabilities, it must ensure that the facility and its services and activities are comparable. 34 CFR § 104.34(c).

E. Individual Education Plan

Unlike the IDEA, Section 504 does not require that a student with a disability have a detailed Individual Education Plan (IEP). However, the Oregon Department of Education recommends that the multidisciplinary, team develop a written plan documenting the servim to be provided. If the cbild is eligible for special education under the IDEA, of course, be or she must have an IEP. In this case, it is not necessary to also develop a Section 504 plan.

F. Procedural Safeguards

School districts are obliged to establish and implement a system of procedural safeguards. Districts must:
  1. Designate an employee to coordinate Section 504 compliance (34 CFR § 104.7(a));
  2. Provide grievance procedures that incorporate appropriate due process standards (34 CFR § 104.7(b). See also OAR 581-021-0049, requiring written grievance procedures;
  3. Annually identify and locate all Section 504 qualified children with disabilities within the district's geographic area who are not receiving a public education (34 CFR § 104.32(a));
  4. Provide annual notice of the district's responsibilities under Section 504 to handicapped persons and their parents and guardians (34 CFR §104.32(b);
  5. Provide notice of nondiscrimination to students, parents, employees, unions, and professional organizations. The notice, which should be included in the student/parent handbook, should also contain the name of the compliance coordinator (34 CFR §§ 104.8(a) and (b);
  6. Provide parents or guardians with procedural safeguards, including notice of their rights, an opportunity to review relevant records, an impartial hearing, and a review procedure. Notice must be given whenever the district acts or refuses to act with respect to identification, evaluation, or placement. Compliance with the procedural safeguards contained in IDEA is sufficient for compliance under Section 504. 34 CFR §104.36.
Oregon Department of Education regulations provide for the same procedural rights in Section 504 impartial hearings as in IDEA hearings, with two exceptions. There is no right for a child's placement to "stay put" during the pendency of proceedings and no right to a free record of the hearing. OAR 581-015-0109.

G. Nonacademic Services

Since Section 504 addresses discrimination, together with the ADA it is often the appropriate vehicle to contest discriminatory provision of nonacademic services. These services include athletics, school health services, recreational activities, special interests chdx, and employment of students. 34 CFR § 104.37(a)(1) requires that handicapped students receive an equal opportunity to participate in these kinds of activities.

H. Program Accessibility

Under the Section 504 regulations, a school district must operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible. 34 CFR § 104.22(a). Although not every school in a district must be accessible, a student with a disability must be given an equal opportunity to use all services. Districts are not required to structurally modify existing, exempted buildings (built before June 3, 1977) if there are alternative means to deliver services--for example, by moving a particular classroom to an accessible location. Districts must give priority to those methods that offer services in the most integrated setting appropriate. 34 CFR §104.22(b). Buildings built since 1977 must be accessible, and areas remodeled after this date must be made accessible. In addition, the ADA may require removal of architectural barriers under certain circumstances.

I. Discipline

As a general rule, a school district may not expel a student with a disability or suspend the student for more than ten cumulative days during the school year for conduct related to the student's disability. This is true under both the IDEA and Section 504. OSEP Memorandum 95-16 (6/26/95), 22 IDELR 531. When a student begins to exhibit behavior problems, the district should first attempt to address the problem by determining whether the placement is appropriate or whether additional services are needed.

If a district proposes to suspend a student for more than ten consecutive school days or the student is subjected to a series of removals that constitutes a pattern, this is considered a change of placement. In determining whether additional removals of up to ten days constitute a pattern, the district must consider at least the length of each removal, the total amount of time the student is removed, and the proximity of the removals to each other. Before this change can be implemented, the district must convene a meeting of the 504 team to determine if the conduct was related to the disability. If the team decides that the conduct was related to the disability, it cannot expel the child and will need to consider alternative service and placement options. However, if the team determines that the conduct was unrelated to the disability, the district may proceed with expulsion of the child. Before this takes place, the parents must be informed of their rights, including their right to a request an impartial hearing.

Unlike the IDEA, under Section 504, an expelled handicapped student is not entitled to continuing educational services if nondisabled students do not receive services when they are expelled. OSEP Memo 95-16, supra. However, a district may decide to continue at least some services in a different setting.

There is no "dangerousness" exception per se allowing a district to expel a student who engaged in dangerous conduct related to his or her disability. See Honig v. Doe, 484 U.S. 305 (1988). Instead, a district has the option to seek a court order removing a child from school or changing the student's placement if the district believes that maintaining the student in the current placement is substantially likely to result in injury to the student or others. However, the reauthorized IDEA allows temporary removal, with various safeguards, of a disabled student to an interim alternative placement for bringing a weapon to school or a school function, or for knowingly possessing or using drugs or soliciting the sale of a controlled substance while at a school or at a school function. 20 USC §615(k). These provisions have been interpreted to apply to Section 504 students as well.

In addition, when enacting the ADA, Congress amended 29 USC §706(8), which contains the definition of "individual with handicap" for purposes of Section 504. The definition was narrowed to exclude persons "currently engaging in the illegal use of drugs when a covered entity acts on such use." 29 USC §706(g)(c)(1). A district may take disciplinary action regarding drug or alcohol use against a disabled student who is currently illegally using drugs or alcohol to the same went that the such disciplinary action is taken against nondisabled students. The due process procedures normally required under Section 504 (34 CFR § 104.36) are not applicable in these circumstances.

IV. REMEDIES UNDER SECTION 504

School districts must have written procedures for the prompt resolution of discrimination complaints. After exhausting local grievance procedures or after 90 days (whichever comes first), a grievant may appeal in writing to the state Superintendent of Public Instruction. If the superintendent finds that discrimination may have occurred, conciliation will be attempted. If conciliation does not resolve the matter in 30 days, a hearing must be held within 30 days of failure of conciliation. If the finding is against the district, the Superintendent may order various remedies including withholding funds to the district. OAR 581-021-0049.

A parent or guardian may avoid the school district grievance procedure and file with the Superintendent of Public Instruction a written request for a hearing before an impartial due process hearing officer. This hearing is the equivalent of a due process hearing under the IDEA in almost all respects except for lack of a "stay put" provision.

Exhaustion of administrative remedies is not required under Section 504, allowing a parent to go diectly to federal district court. Parents cannot circumvent the exhaustion requirement of the IDEA, however, by repackaging claim that could have been brought under the IDEA and bringing them under Section 504 or other statutes instead. See, e.g., WB. v. Matula, 67 F.3rd 494, 495-96 (3rd Cir. 1995).

Unlike under the IDEA, there is general judicial agreement that money damages are available under Section 504. See, e.g. Smith v. Barton, 914 F. 2d 1330, 1337 (9th Cir. 1989). Most courts appear to hold that the school district must have intentionally violated Section 504 for damages to be awarded. See, e.g. Whitehead by Whitehead v. School Board for Hillsborough County, 918 F.Supp. 1515 (M.D. Fla. 1996). In the education context, many courts have held that Section 504 damages will be awarded only upon a showing of bad faith or gross misjudgment. See, e.g., Hoekstra by Hoekstra v. Independent School District No. 283, 103 F.3rd 624 (8th Cir. 1996). A prevailing parent is entitled to attorney's fees. The Section 504 attorney fee provision is similar to other civil rights fee provisions such as 42 USC § 1988. 29 USC §794a(b)(2).

Finally, a complaint alleging disability discrimination may be filed on behalf of an individual, or a class with the Office of Civil Rights, the enforcement agency for Section 504. A complaint must be filed within I8O days of the alleged discrimination, although in limited excumstances OCR way grant a waiver of this requirement. OCR investigate complaints and, if a violation is found, attempts to resolve the manner by voluntary, informal means whenever possible. OCR may simply facilitate an agreement between the parties, or, if it finds that an allegation is substantiated, may reach an agreement with the district for corrective action. OCR has the ability to take other actions if necessary, incluiding seeking suspension or termination of federal funding.

The benefit of filing with OCR is that OCR conducts an investigation at no cost to the complainant. Filing with OCR is a cheap and relatively stress-free route for a parent to take in attempting to change school district conduct. However, the investigation may be time-consuming, and remedies are more limited than in judicial proceedings.