Special Education, Section 504 and the Americans with Disabilities Act

Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA)(1) are broad civil rights statutes designed to promote equal access to and participation in programs and services. A school district that fails to provide comparable benefits and services in regard to its classes, services and other school programs violates Section 504 and ADA regulations.(2) These regulations require that students with disabilities receive benefits and services comparable to those given their nondisabled peers, and make it illegal for schools to discriminate on the basis of disability by:

∙ denying a student the opportunity to participate in or benefit from a benefit or service,
∙ providing an opportunity to participate or benefit that is unequal to that provided others,
∙ providing a benefit or service that is not as effective as that provided to others, or
∙ providing lower quality benefits, services or programs than those provided others.(3)

For benefits or services provided to be “equally effective,” they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, and reach the same level of achievement as other students.(4)

Section 504 regulations require public schools to provide a free appropriate public education (FAPE) to children with disabilities in accordance with its requirements. A FAPE under Section 504 means that the education and services provided to students with disabilities must meet those students’ needs as adequately as the needs of nondisabled students are met.(5) It is illegal under the Section 504 and ADA regulations for school districts to use policies, practices and procedures that, intentionally or not, result in discrimination. This ban includes those policies, practices, and procedures that have the effect of discriminating against students with disabilities, or have the effect of defeating or impairing the student's accomplishment of the objectives of the education program.(6)

In meeting their responsibilities to students with disabilities under Section 504 and Title II of the ADA, school districts must make all modifications and accommodations, and provide supplementary aids and services needed to ensure that students with disabilities can participate to the maximum extent possible in the school’s courses and programs.(7) If access is not provided, the student is deemed to be denied comparable benefits and services, in violation of Section 504 and the ADA.

(1) Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), 29 U.S.C. 794 and Title II of the Americans with Disabilities Act of 1990 (Title II of the ADA), 42 U.S.C. 12131, protect persons with disabilities from discrimination on the basis of disability. The U.S Department of Education’s Office for Civil Rights (OCR) enforces Section 504 and Title II of the ADA, Under Section 504 and its implementing regulations at 34 CFR Part 104, children with disabilities in public elementary and secondary education programs operated by recipients of Federal financial assistance are entitled to a FAPE in accordance with the Section 504 regulations at 34 CFR 104.33-104.36. With respect to elementary and secondary education programs, OCR generally interprets Title II of the ADA and its prohibition against discrimination on the basis of disability in a manner consistent with Section 504 and its regulations.

(2) In addition, the IDEA requires states to develop “performance goals and indicators” for children with disabilities that are consistent, to the maximum extent appropriate, with the standards set by the state for all students. 20 U.S.C. §1412(a)(16).

(3) 34 C.F.R. §104.4(b)(1) (§ 504 regulation); 28 U.S.C. §35.130(b)(1) (ADA regulation).

(4) 34 C.F.R. §104.4(b)(2); 28 C.F.R. §35.130(b)(iii).

(5) 34 C.F.R. §104.33.

(6) 34 C.F.R. §104.4(b)(4); 28 C.F.R. §35.130(b)(3).

(7) See 42 U.S.C. 12131(2); 34 C.F.R. 104.4(b); 28 C.F.R. 35.130(b)(7); Alexander v. Choate, 469 U.S. 287, 300-01 (1985); Thomas v. Davidson Academy, 846 F. Supp. 611 (M.D. Tenn. 1994).