From Jim Comstock-Galagan
The recent amendments to Section 504 and the ADAA greatly expanded coverage under Section 504/ADA. The ADA Amendments Act, Public Law No. 110–325 (2008), overturned Supreme Court precedent that narrowed coverage under the ADA and Section 504.
The reauthorized law provided that impairments should be considered in their unmitigated state and widened the definition of major life activities set out in the statute’s coverage provision.
There are ways to use Section 504 and the Americans with Disabilities Amendments Act of 2008 (ADAAA). Read A New Look at Section 504 and the ADA in Special Education Cases by Mark C. Weber.
In that article, Professor Weber wrote,
“School districts seem increasingly eager to decide that children are not eligible for services under the Individuals with Disabilities Education Act (IDEA) …and courts frequently uphold these decisions…”
“If eligibility under IDEA continues to be cut back, parents of children with disabilities are likely to bring more claims for services under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (2011), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131–50 (2011).
“Section 504 forbids disability discrimination by federal grantees, including local school districts; Title II forbids disability discrimination by state and local governments, again including school districts. The regulations promulgated to enforce section 504 require that all children with disabilities, as defined by section 504 and the ADA, be provided with free, appropriate public education as interpreted by the section 504 regulations. (34 C.F.R. § 104.33(a)). That entitlement does not hinge on IDEA eligibility.”
Jim notes that historically, Section 504 has been used to supplement IDEA for compensatory damages, but there has been very little litigation under Section 504 in other areas.
The ADAAA expanded the definition of which children and adults qualify for protections. For example, a child who has ADHD but is doing well in school because his medication is working.
FAPE Under Section 504
The definition of “free appropriate public education” is different under Section 504 than under IDEA.
The question that must be asked and answered is this: “Are the needs of the disabled child or children being met as adequately as the needs of nondisabled children?”
Jim says, “I believe FAPE under 504 goes further than FAPE under IDEA.” He uses the example of graduation rates.
“Assume the overall graduation rate in your State is 72%, but the graduation rate of kids with disabilities who are not intellectually disabled is 52%. So, twenty percent fewer kids with disabilities graduate with a high school diploma. Are the needs of disabled children being met as adequately as the needs of nondisabled children? If they are not, aren’t these children being discriminated against as a result of their disabilities?”
“This is a powerful argument that is not available under IDEA.”
“Perhaps we’ve been so focused on meeting the individualized needs of kids with disabilities that we may be missing the forest for the trees.”
504 & Discipline
Jim explained, “I specialize in discipline issues in my practice. I recommend that you read an expulsion case from 1981 - S-1 v. Turlington, 635 F.2d 342.
Expulsion is a change of placement. If the child’s behavior is related to disability, the school cannot suspend the child or terminate services.
Kids are often assigned to alternative schools for 45 days or longer. Under IDEA, kids are subject to long-term suspensions for weapons, drugs, and seriously bodily injury, but many kids are placed in alternative schools for relatively minor issues. Long-term suspensions (beyond 10 days) are a change in placement.
S-1 v. Turlington says schools cannot change the child’s placement under these circumstances. It’s time to revisit S-1 v. Turlington.
Disparate Impact and Disproportionate Treatment
In discussing intentional or unintentional discrimination, Jim describes a recent complaint filed with OCR that was based on title VI and Section 504/ADAAA. The complaint focused on dramatically different discipline rates and referral rates to alternate schools.
Restraint and Seclusion
504 opens up other issues, including restraint and seclusion.
Jim asks, “How many school districts in your state have policies on restraint and seclusion? How many school districts in your state have restraint and seclusion policies for nondisabled kids?
“Restraint and seclusion policies only apply to kids with disabilities. Shouldn’t these policies apply to all kids?”
“If I’m a 504 kid, I’m entitled to a free appropriate public education as it is defined under Section 504. Since restraint and seclusion policies only apply to kids with disabilities, I want to be treated as a nondisabled kid.”
“The key is equal treatment. If a school uses restraint and seclusion, this has to apply to everyone.”
On May 15, 2012, the U. S. Department of Education issued a “Resource Document” that discourages schools from using restraint and seclusion.
“The Resource Document includes 15 principles that highlight how school behavioral interventions can educe or eliminate the use of restraint or seclusion. These principles offer states, districts and other education leaders a framework for developing appropriate policies related to restraint and seclusion to ensure the safety of adults and children.
The Secretary of Education, Arne Duncan said, “Ultimately, the standard for educators should be the same standard that parents use for their own children. There is a difference between a brief time out in the corner of a classroom to help a child calm down and locking a child in an isolated room for hours. This really comes down to common sense.”
Link to Restraint & Seclusion: Resource Document