Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (and the Amendments to the ADA of 2008) are civil rights laws. Section 504 prohibits any entity which receives federal funding, public or private, from discriminating against an individual on the basis of their disability. In 1990, Title II of the ADA expanded the scope to include all government entities whether or not they receive federal funding. What does this mean for school children? It means they are entitled to a Free Appropriate Public Education (FAPE). It means any otherwise qualified student cannot be excluded from any activities or denied the benefit of any programs or penalized in any way on the sole basis of their disability. In order to be protected under Section 504, a person must have a physical or mental impairment which "substantially limits a major life activity". There are three criteria:
- an impairment which
- substantially limits
- a major life activity
None of them are fully defined in the statute which means eligibility must be determined on a case by case basis. Parents teachers or administrators can make the request for an initial evaluation. Once requested, the school must obtain informed consent of the parent or legal guardian to proceed. If consent is refused, and the school believes or suspects a child as having a disability, they can request a due process hearing to determine whether or not to override the parents decision.
Although Section 504 does include a list of "major life activities" such as walking breathing and hearing, it specifically states said list is not exhaustive. Furthermore, the Amendments to the ADA (effective January 1, 2009) expanded the list to include communicating and concentrating but still stated the list wasn't exhaustive. There is also no list of qualifying "impairments" or a definition of "substantial limitation". Eligibility is determined through individual evaluation by a committee which should be made up of individuals who are familiar with the student, able to evaluate the data properly and know what the placement options are. Data must be gathered from a variety of sources including, but not limited to, aptitude testing, academic records, medical records, observations, physical condition, social and cultural factors, etc. What the committee cannot consider in determining eligibility is the use or effect of "mitigating measures". Once again, the law provides a list of such measures which include medication, medical devices, mobility and hearing devices, reasonable accommodations, and so on; but also states the list is not exclusive. There is one exception made for ordinary glasses or contact lenses which fully correct a visual defect.
There are three possible outcomes to the evaluation: the student may be found ineligible for protection under Section 504 by failing to meet one or more of the criteria; the student may be referred for further evaluation for Special Education services under IDEA (if the district uses the same evaluation process for both, further evaluation may not be necessary); or the student will be found eligible for services under Section 504. If parents are dissatisfied with the evaluation process, they may request a due process hearing.
What services are provided under Section 504? In order to answer this question, we need to look back at the purpose of Section 504. As an anti-discrimination statute, it is meant to eliminate barriers, or "level the playing field"; to put disabled students on equal ground with non-disabled peers. As a result, there are limits to what services can be provided. The Supreme Court stated 504 was meant to provide qualifying students "reasonable modifications" which enable them to meet "all of the program requirements in spite of their disability" (Southeastern Community College v. Davis, 442 U.S. 397 (1979)). A plan under 504 can include adjustments such as sitting near the teacher or providing wheelchair access to portable classrooms, low vision aids, or communication aids just to name a few. These modifications typically do not include changes to the curriculum or program eligibility requirements. If a student requires more comprehensive or remedial services, they would probably be better served under the IDEA. All students covered under the IDEA qualify for protection under Section 504 and the ADA but not all students protected under Section 504 and the ADA are eligible to receive services under the IDEA.
If you have questions about any part of the process, check out the Office for Civil Rights website. The OCR is responsible for enforcing Section 504 and the ADA. They have a great FAQ section here: http://www2.ed.gov/about/offices/list/ocr/504faq.html Still confused? Talk to an advocate like myself to get answers to questions specific to your child.
The Individuals with Disabilities Education Act governs the provision of "special education" and related services to children with qualifying disabilities from birth through the age of 21. Children under age 2 receive early intervention services designed to help those with an identified disability in the areas of cognitive development, social and emotional development, physical development, communication and adaptive development. Children over the age of 2 with qualifying disabilities are provided with an Individualized Education Program designed to meet that child's specific needs. The purpose of the IDEA is to provide students with disabilities with a Free Appropriate Public Education that prepares them for further education, employment and independent living (20 USC 1400 et. seq.). Unlike 504 and the ADA, to qualify students must have one of a list of specified disabilities. They are:
- Autism
- Deaf-blindness
- Hearing impairment (including deafness)
- Emotional disturbance
- Intellectual disabilities (formerly mental retardation)
- Multiple disabilities
- Orthopedic impairment
- Other health impairment (this is where you find things like ADHD)
- Specific learning disabilities (this is where you find things like dyslexia)
- Speech or language impairment (things like stuttering not English language learners)
- Traumatic brain injury
- Visual impairment including blindness
In addition, they must be in need of special education and related services. The law requires these services be provided in the "least restrictive environment" appropriate. In other words, they should be educated with their non-disabled peers as much as possible.
Assessments are performed to determine areas of strength and weakness and ascertain the students unique needs.
I don't want to get too deep into the SPED process here. I will cover that in my next post. This is just to give the reader a general feel for the laws and how they are distinguished.
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