Section 504 is the section of the Rehabilitation Act of 1973, which applies to persons with disabilities. Basically it is a federal civil rights law that protects the civil and constitutional rights of persons with disabilities. Section 504 prohibits organizations that receive federal funds (public schools are absolutely covered under this) from discriminating against people solely because they have a disability. Section 504 is enforced by the US Department of Education, Office for Civil Rights (OCR).

Title 34--Education

Section 504 and IDEA: Basic Similarities and Differences
S. James Rosenfeld, Esq.
President
EDLAW, Inc.

LINK

Although parents of children with disabilities are frequently more familiar with the Individuals with Disabilities Education Act (IDEA), they should also acquaint themselves with Section 504 of the Rehabilitation Act (hereinafter "Section 504"). Knowledge of both statutes, and particularly their implementing regulations, often is necessary to be sure of securing an appropriate education for children with disabilities. Indeed, for some children with disabilities, Section 504 may be more important -- the only legal mandate requiring education agencies to provide special education or related services to a child with a disability.

This article will familiarize parents with why and how Section 504 impacts the education of children with disabilities; illustrate some of the differences between Section 504 and IDEA; and provide a basic explanation of "how Section 504 works." It is vital to remember, however, that literally volumes have been written on these topics and, therefore, no one should rely solely on this article to undertake legal action. A suitable next step in the learning process might be review of RIGHTS OF PHYSICALLY HANDICAPPED PERSONS (Shepard's/McGraw-Hill, Colorado Springs, Colorado: 1984), a concise but very sophisticated explanation of this area by Professor Laura F. Rothstein of the University of Houston School of Law.

What Is the Purpose of Section 504?

Section 504 was enacted to "level the playing field" - to eliminate impediments to full participation by persons with disabilities. In legal terms, the statute was intended to prevent intentional or unintentional discrimination against persons with disabilities, persons who are believed to have disabilities, or family members of persons with disabilities.1

Though enacted almost 25 years ago, until recently Section 504 has been largely ignored by schools. Given the statute's tempestuous history, this is little short of shocking. Two years after Section 504 was enacted, advocates held highly publicized demonstrations on the doorstep of the then-U.S. Department of Health, Education and Welfare simply to get the Department to adopt implementing regulations. But since then, the statute, regulations and their mandate have been considered by many as the "black hole" of the education law universe.

What Is the Difference Between Section 504 and IDEA?

There are a number of differences between the two statutes, which have very different, but complementary, objectives. Perhaps the most important is, as has been stated, that Section 504 is intended to establish a "level playing field" - usually by eliminating barriers that exclude persons with disabilities - whereas IDEA is remedial - often requiring the provision of programs and services in addition to those available to persons without disabilities. Thus, Section 504 precludes hurdles to participation, whether physical - steps that prevent a person in a wheelchair from accessing a building - or programmatic - excluding a child with hepatitis from a classroom. By distinction, IDEA is similar to an "affirmative action" law: as some have asserted, school children with disabilities who fall within IDEA's coverage are sometimes granted "more" services or additional protections than children without disabilities.

The "more" and "additional" denote another important difference between Section 504 and IDEA. While IDEA requires "more" of schools for children of disabilities, it also provides schools with additional, if insignificant, funding. Section 504 requires that schools not discriminate, and in some cases undertake actions that require additional expenditures, but provides no additional financial support. For this reason, schools often drag their feet in providing needed services to children under Section 504, and are less hesitant to openly discuss the limitations of funding. And the fact is that while their legal obligation may be no less, as a practical matter it is often extremely difficult to obtain the administrative and judicial support needed to secure compliance. The eligibility-based approach of IDEA makes students protected by Section 504 something of a square peg in a round hole. Often these students, because of their special needs, were put off by "regular" education, but they weren't encompassed by "special" education because they could not be counted for the funding that drives IDEA. Particularly these days, there is little incentive for schools to take responsibility for students who come with no funding.

A distinction (perhaps) without a difference between IDEA and Section 504 is that the former applies to education agencies who seek to obtain funds under that specific statute, while the latter applies to education agencies if even a single of their programs or activities receive financial assistance from any Federal source. For educational institutions, the term "program or activity" includes any of the operations of a State educational agency (SEA) and local educational agency (LEA) receiving federal funds regardless of whether the specific program or activity involved is a direct recipient of the federal funds.2 In fact, for a brief period following enactment of IDEA (then the Education of All Handicapped Children Act), the state of New Mexico did not seek funds under the statute, thereby avoiding its detailed reporting and procedural requirements. However, after a lawsuit by advocacy groups alleging that the State's education programs failed to comply with Section 504, the State concluded that since its service obligations under Section 504 were essentially identical to those under IDEA, there seemed little point to not seeking IDEA funding.

A fourth important difference between the two statutes is who is protected by them. The definition of a disability under Section 504 is much broader than the definition under the IDEA. As the illustration below is intended to show, all IDEA students are also covered by Section 504, but not all Section 504 students are eligible for services under IDEA.

As a practical matter, this means that not all children with disabilities are entitled to services under IDEA, only those who are "eligible" under the specified disability categories. Section 504 is less discriminatory: it protects all persons with a disability who

1. have a physical or mental impairment which substantially limits one or more major life activities;

2. have a record of such an impairment; or

3. are regarded as having such an impairment.

The Section 504 regulations further define a "physical or mental impairment" as 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 including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin or endocrine: or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

There is some legal gloss to this apparently straight-forward text. To fall within the protection of Section 504, a person's physical or mental impairment must have a substantial limitation (permanent or temporary) on one or more major life activities - functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working. Insofar as school children are concerned, the critical question is whether a student's impairment substantially limits the ability to learn. It is not true, as some school personnel responsible for administration of Section 504 have contended, that the impairment must be of a life activity other than or in addition to learning.

In this regard, two points should be stressed. First, there is no quantifiable standard by which to apply the "substantially limits" test. Second, to determine whether a student's learning is substantially limited, schools need to consider more than the student's grades. Both academic and nonacademic activities need to be considered. For example, if a student with diabetes is barred by the school from participating in class trips because of the impairment, the student's learning is "limited."

Interpreting Section 504's coverage too narrowly has resulted in many districts being found out of compliance for failure to identify students protected solely by Section 504.

Following are examples of students who may be protected by Section 504, but who may not be eligible for services under the IDEA:

students with communicable diseases (i.e., hepatitis);
students with temporary disabilities arising from accidents who may need short term hospitalization or homebound recovery;
students with allergies or asthma;
students who are drug addicted or alcoholic, as long as they are not currently using illegal drugs
students with environmental illnesses;
students who are 22 or older depending on state law; parents with disabilities.

What is the Relationship Between Section 504 and the ADA?

The Americans With Disabilities Act (ADA), enacted in 1990, has deep roots in Section 504. In many ways, the ADA is Section 504 "writ large."3 The primary difference is that while Section 504 applies only to organizations that receive Federal funding, the ADA applies to a much broader universe. However, with respect to education, the ADA's objectives and language are very similar to Section 504, and for this reason both statutes are administered by the Office for Civil Rights and considered essentially identical.

The Section 504 Regulations

Section 504 has a specific set of regulations that apply to preschool, elementary and secondary programs that receive or benefit from federal financial assistance. These are found at Title 34 of the Code of Federal Regulations (CFR), Part 104. Although the ADA applies to public schools by virtue of Title II, the regulations have no specific provisions regarding education programs. Therefore, in interpreting the ADA, the OCR uses the standards under Section 504 except where Title II provides otherwise. In effect, virtually every violation of Section 504 is also a violation of the ADA as it applies to students; in fact, the OCR has stated that complaints alleging violations of one statute will automatically be investigated for violations of the other. A fairly detailed explanation of the areas considered and what OCR looks for in reviewing compliance with ADA and Section 504 can be obtained by reviewing the compliance manual issued by OCR.

Free Appropriate Public Education

Section 504 is broader than the Individuals With Disabilities Education Act (IDEA) not only with respect to the persons protected, but also in the scope of what is considered a "free appropriate public education" (FAPE), a term used in the implementing regulations for both statutes. Thus, while IDEA defines FAPE to include the provision of special education and related services (34 C.F.R. Reg. 300.8), the Section 504 definition includes the provision of special or regular education and related services.4

A few points need to be highlighted. Since Section 504 is a non-discrimination law, any analysis of an appropriate education for a student with disabilities needs to include the educational opportunities provided to students who are not disabled. This is because an appropriate education is one which meets the needs of a student with disabilities as adequately as the needs of students without disabilities. Unlike IDEA - which focuses on the unique educational needs of the student - Section 504 looks at comparing the education of students with and without disabilities.

The United States Supreme Court underlined this point in the case Southeastern Community College v. Davis, 442 U.S. 397 (1979), when it held that an otherwise qualified individual with a disability under Section 504 is one who, with reasonable modifications, is able to meet all of the program's requirements in spite of his or her disability. The Court stated that Section 504 does not impose an affirmative action obligation upon entities covered since its intent is non-discrimination.

Subsequent court decisions have affirmed that a school's obligations under Section 504 are not limitless, but often require a balancing of competing factors. As the Second Circuit Court of Appeals stated in Rothschild v. Grottenthaler et. al., 907 F.2d 286 (2nd Cir. 1990), Section 504 "must be responsive to two powerful but countervailing considerations: the need to give effect to the statutory objectives and the desire to keep Section 504 within manageable bounds."

Second, under IDEA all services included in a student's individualized education program (IEP) must be provided at no expense to the student or the parents. Under Section 504, however, while a school may not require parents of disabled students to pay the costs associated with necessary accommodations or services, fees charged to all parents of the general student population, e.g., athletic locker fees or library card charges, may also be collected from parents of students with disabilities. Again the analysis calls for a comparison.

Evaluation Requirements

Paralleling IDEA, Section 504 has specific procedural requirements for the identification, evaluation, placement and procedural safeguards of preschool, elementary and secondary students.

Child Find

Section 504 puts the responsibility for identifying and locating students with disabilities on the school. A school must annually undertake efforts to "identify and locate" every qualified individual with a disability residing in the school's jurisdiction who is not receiving a public education.

Evaluations

Public elementary and secondary schools are required to "establish standards and procedures" for the evaluation and placement of students who, because of disability, need or are believed to need special education or related services, before taking any action with respect to the initial placement in a regular or special education program and any subsequent significant change in placement.

A common failing of school districts is to evaluate only those students who fall within the IDEA categories, or to have no separate written evaluation procedures. As previously noted, Section 504's definition is broader than the IDEA's. Therefore, a district's procedures and staff training should emphasize that a student may require an evaluation under Section 504 even if there is no reason to suspect that the student is in need of special education services under an IEP.

The evaluation procedures, like those under IDEA, must ensure that:

tests and other evaluation materials have been validated;
evaluations are administered by trained personnel;
evaluations are tailored to assess specific areas of educational need;
tests are selected and administered that accurately reflect the factors the test purports to measure.

Procedurally, when interpreting the evaluation data, schools should draw upon information from a variety of sources (i.e., tests, teacher recommendations, physical condition, social or cultural background, adaptive behavior). The school also must establish procedures to document that the evaluation information has been considered. The form of documentation is discretionary and could include such things as meeting notes or evaluation reports or summaries. This is the only place where the regulations specifically require documentation. However, as a practical matter, a school should be in a position to provide documentation if challenged to prove that it complied with requisite procedures. For example, parents must be provided with notice of the school's actions with regard to the evaluation of their child. See 34 C.F.R. Reg.104.36 and OCR Memorandum to Senior Staff (October 1988). Although the regulations do not require that the notice be in writing, best practice would dictate documentation of this notice requirement.

There are no timelines for evaluations under Section 504. The OCR interprets the regulations as requiring evaluations to be completed "within a reasonable period of time." What this means as a practical matter, unfortunately, is that a substantial amount of time can elapse between identification and completion of evaluation. Remember, however, that the IDEA regulations suffer from the same defect.

Placement Decisions

Again, the placement decision procedures under Section 504 are comparable to those under IDEA. The school must ensure that individuals who are knowledgeable about the student, the meaning of the evaluation data and the placement options are involved. The placement decision must also be made in conformity with the least restrictive environment provision. 34 C.F.R. Reg. 104.34. But unlike IDEA, Section 504 does not prescribe the membership of the team. It is up to the district to determine whether parents will be included as members of the team. When interpreting the Section 504 provision on "least restrictive environment," the courts have been guided by the interpretations of the LRE provision under the IDEA.

With respect to disciplinary considerations, it was OCR that originally adopted the position that an expulsion or suspension of a student for more than ten consecutive days constitutes a "significant change of placement" under Section 504, subsequently adopted by OSERS/OSEP in interpreting IDEA. In addition, before a student with a disability under Section 504 is suspended for more than ten days cumulatively in a school year, the school's placement team needs to determine whether the series of suspensions creates a pattern that constitutes a "significant change of placement." That determination must be made on a case-by-case basis, taking into account such factors as the length of each suspension, the proximity of the suspensions to one another, and the total amount of time the student is excluded from school.

In addition, the placement team needs to decide whether the misconduct is a manifestation of the student's disability. The team may need to supplement the evaluation data before making this decision. If the team decides that there is a connection, the student cannot be suspended for more than ten days or expelled. If the team concludes there is no connection, the student would be subject to the school's regular disciplinary procedures. Note that this is a different result from that required by the OSEP until recently under IDEA.

The LRE provision in Section 504 also has been used by the courts to address the right of students who are HIV positive or have full-blown AIDS to be educated in school environments. To legally segregate a student with AIDS from other children in a classroom, it must be determined that more than a "remote theoretical possibility" of transmission of the virus exists. It must be found that there is a significant risk of transmission despite making "reasonable accommodations." Martinez v. School Board of Hillsborough County, Florida, 861 F.2d 1502 (11th Cir. 1988).

Procedural Safeguards

Section 504 requires recipients (every public elementary and secondary school) to provide a system of procedural safeguards, including:

notice;
opportunity for parents or guardians to examine relevant records;
impartial hearing with an opportunity for participation by parents/guardians and representation by counsel;
review procedures.

In this regard, the Section 504 regulations offer schools a choice: they can adopt a set of procedures specifically for Section 504 proceedings, or they can follow the procedural safeguards required by IDEA. This is a bit of a Hobson's Choice since the IDEA requirements are more extensive than those under Section 504, as will be discussed. Surprisingly, however, many schools have done neither.

Notice

Section 504 requires that parents receive notice of actions regarding the identification, evaluation and placement of their children. The notice does not need to be in writing, although many districts do provide written notice so they can document the event if they are challenged.

Consent

There is no consent requirement under Section 504. The IDEA requires that parents provide written consent prior to the initial evaluation and the initial placement of their child.

Impartial Hearing

States differ on whether the IDEA hearing officers are authorized to hear and rule on Section 504 issues or claims. If they are not, then a school district must be prepared to provide an alternative hearing procedure. The regulations do not specify the timelines or impartiality requirements in conducting the impartial hearing, but the OCR applies a standard of "fundamental fairness" and will be guided by IDEA case law and other decisions.

A significant number of states, but not all, have authorized their IDEA hearing officers to hear Section 504 issues raised by the parties in a due process hearing. A policy reason for doing this has been the desire to avoid duplicate and simultaneous hearings under the IDEA and Section 504 based on the same fact situation.

Complaints, Compliance and Monitoring
Complaints of Violations

As previously mentioned, a student or parent has the right to file a complaint if he or she believes discrimination has occurred. Initially, the complaint should be filed with the school's or school district's Section 504 compliance officer. However, it is not unusual for school district personnel to be unaware of who serves as the compliance officer, and sometimes for the good reason that there is none. That, in an of itself, is a violation of Section 504. Utilizing this complaint process does not limit access to other enforcement options, either at a later date or simultaneously. And there is no Section 504 requirement, comparable to the IDEA, requiring state education agencies to establish state complaint systems for allegations that school districts are not complying with Section 504 and ADA requirements.

A complaint may also be filed with the Office for Civil Rights itself (usually the regional office) which, in addition to technical assistance activities, conducts compliance reviews and complaint investigations. The scope of Section 504 complaints is very broad. It may be filed by any individual or organization and it may address individual student, class, or systemic issues. The complaint must be filed within 180 days of the alleged discriminatory action, although the Regional Director has the authority to waive the time limit in some circumstances.

The OCR will conduct an investigation of the complaint through data collection and written responses to questions, and may conduct an on site review. An informal process known as Early Complaint Resolution (ECR) is available in individual, but not class, complaints.

The OCR will issue a Letter of Finding, either with a "no violation" conclusion or identifying violations and specifying corrective actions. Failure to implement the requested corrective actions may lead to an administrative hearing, with the possibility that Federal education funds may be terminated.

The OCR has stated that its compliance monitoring generally will focus on whether a school district has followed the policy and procedural requirements of the law and regulations, rather than made the "correct" substantive decision in the specific case before it. In other words, the OCR does not see its role as second-guessing substantive decisions. As the comments to the regulations state:

It is not the intention of the Department except in extraordinary circumstances to review the result of individual placement and other educational decisions, so long as the school district complies with the "process" requirements of this subpart (concerning the identification and location, evaluation, and due process procedures).

Self-Evaluations

School districts were supposed to have conducted a self-evaluation back in 1977. Most school districts either did not conduct the 1977 study or have not been able to locate it. The Americans with Disabilities Act, when enacted in 1990, also required local governmental agencies, including school districts, to conduct a self-evaluation of their services, policies and practices, and their effects for the purpose of determining if they discriminate against individuals with disabilities. If the district employs 50 or more employees, the self-evaluation should have been retained and made available for public inspection for at least three years following its completion. The number of education agencies that have complied with this newer provision is problematic.

Judicial Action

In addition to the above enforcement options, a student or parent may initiate a court action alleging a violation of Section 504, independent of whatever action may be taken under IDEA.

The Rehabilitation Act specifically authorizes a court in its discretion to award reasonable attorney's fees to the prevailing party. In addition to injunctive relief, there is now grounds for the awarding of monetary damages and some recent litigation indicates that it may be possible to recover personal damages from educational personnel under Section 504 in the appropriate circumstances.

Conclusions

For those children with disabilities not covered by IDEA, the protections of Section 504 are critical. For those children with disabilities who are covered by IDEA, the protections of Section 504 may be more attractive because of their flexibility. On the other hand, Section 504 remains more of a mystery to parents precisely because its protections are not defined as specifically as those under IDEA. For this reason, if no other, parents should consult an attorney before taking any action premised on their rights under Section 504.

Footnotes
1. The text of the legal mandate is remarkably brief; Section 504, 29 U.S.C. §794,states:

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

2. A school district is not only prohibited from engaging in discriminatory conduct involving its own programs and activities, but is also prohibited from directly or through contractual, licensing or other arrangements, aiding or perpetuating discrimination against a qualified person with a disability by providing "significant assistance" to an agency, organization or person that discriminates. Among the factors that will be evaluated in determining whether a public school is providing significant assistance to a private group are:

direct financial support,
indirect financial support,
provision of tangible resources such as staff and materials,
intangible benefits such as the lending of recognition and approval,
the selectivity of the school's provision of privileges and resources, and
whether the relationship is occasional and temporary or permanent and long-term.

3. Patterned after Section 504, the applicable provision of the ADA similarly states in Title II, 42 U.S.C. §12132:

Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by any such entity.

4. Specifically, a free appropriate public education under Section 504 is defined as "the provision of regular or special education and related aids and services that ... are designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met and ... are based upon adherence to specified procedures." 34 C.F.R. Reg. 104.33(b)(1)

Section 504 Complaint

[ATTORNEY'S NAME]

Attorney at Law

[ATTORNEY'S ADDRESS]

[ATTORNEY'S TELEPHONE]

[ATTORNEY'S FAX]

Complaint for Violations of

§504 of the Rehabilitation Act

and

The Americans with Disabilities Act

TO: Office for Civil Rights

Region [ --]

Street Address

City, State ZIP


Name(s) of Complainant(s)

Mailing Address

Daytime phone number

v.

School District

Superintendent's Name

Superintendent's Telephone Number

School District Address

I. INTRODUCTION

This is a complaint alleging violations of Section 504 of the Rehabilitation Act of 1973 (hereinafter "Section 504") and of the Americans with Disabilities Act (hereinafter "ADA").

Complainant is the parent of STUDENT, a disabled student.

STUDENT is a sixteen year old student in County Schools.

County Schools (hereinafter "school district") is a recipient of federal financial assistance as defined in Section 504 of the Rehabilitation Act.

School district is also a governmental entity pursuant to Title II.,A. of the ADA.

STUDENT has been discriminated against under both Section 504 and under the ADA by the school district.

Complainant has been retaliated against by the school district for her efforts in advocating on her daughter's behalf.

STUDENT is a qualified disabled individual eligible for protection under both Section 504 and the ADA.

STUDENT has a mental impairment as follows: (describe)

STUDENT has a physical impairment as follows: (describe)

STUDENT's impairment(s) substantially limit one or more major life activities as follows:

caring for one's self (describe):

performing manual tasks (describe):

walking (describe):

seeing (describe):

hearing (describe):

speaking (describe):

breathing (describe):

learning (describe):

working (describe):

The substantial limitation has been both because of the disability and because of the discrimination in failing to provide appropriate programs or provide needed modifications.

During the time of all the examples of discrimination in this complaint STUDENT has been a student in the school district and school district has at all times been responsible for offering appropriate programs without discrimination.

II. NONCOMPLIANCE UNDER THE IDEA

If school district had met STUDENT's needs under the Individuals with Disabilities Education Act (hereinafter IDEA), then presumably many, if not all, of her rights under Section 504 and the ADA would have been met.

Complainant therefore wishes to indicate the history of failures under the IDEA.

STUDENT was first considered for eligibility for services under the IDEA in [DATE].

Complainant never received proper written notices required by the IDEA (34 C.F.R. 300.504, 505) when the school district began the identification phase under the IDEA, nor the proper written notice when the school district proposed the evaluation phase.

STUDENT was not identified in all required areas (describe):

STUDENT's identification and evaluation were not conducted in a timely fashion (describe):

School district did not use the required personnel and conduct all required evaluations before proposing a program for STUDENT (describe):

Complainant was directed by school personnel to obtain, at her expense, medical diagnostic information (describe):

Complainant was never told that the school district was responsible for obtaining medical diagnostic information and/or for paying for it.

Complainant did not receive the proper written notice required prior to the IEP meetings for STUDENT and was not able to function as an "equal participant" as required by the IDEA statute and regulations, especially Appendix C, I.a. (describe):

At the IEP meetings, the required personnel were not in attendance and the IEP developed for STUDENT did not address all of her educational needs - in particular, health, social and emotional status, general intelligence, academic performance, communication status, and motor abilities (describe):

The IEP was not properly communicated to necessary personnel and was not implemented in full (describe):

Short term objectives on the IEP were meaningless and were not measured during the year so the IEP was really not in control of the program (describe):

Significant modifications were made in the IEPs by the school district without re-convening the IEP team and without notification to the parent (describe):

Without having received the appropriate notice of rights, Complainant was not able to understand her role in the IEP process and how to make the process work as required by law (describe):

The IEPs offered by the school district were not "reasonably calculated to confer benefit" and, in fact, STUDENT worsened from year to year under them (describe):

While in school district's program, STUDENT developed problems that had not existed before.

While in school district's program, STUDENT developed social/emotional problems that had not existed before (describe):

While in school district's program, STUDENT developed problems in academic performance that had not existed before (describe):

STUDENT was consistently moved to more restrictive and more restrictive placements with the school district never examining the previous less restrictive placement and determining if it could be made appropriate (describe):

STUDENT is now being served in basically a home-based program without access to the full curriculum made available to others.

When complainant inquired about further evaluation, because of the obvious failure of school district's programming, she was told it was not needed (describe):

The school district waived STUDENT's participation in testing performed on the regular student population with the result that Complainant could not obtain a fair measure of STUDENT's performance in comparison with regular students (describe):

STUDENT was "promoted" each year from grade to grade without mastering the content of the previous grade (describe):

When complainant asked about additional services, she was told they were not available because they cost too much (describe):

Certain needed related services were never made available by the school district with the result that Complainant had to obtain those needed services privately and at complainant's own expense (describe):

When complainant asked about certain related services she was told they were "medical" or otherwise not the responsibility of the school district (describe):

Discipline was not addressed properly at the IEP meetings and was not addressed properly on the IEPs with the result that STUDENT was "punished" for behaviors that were a manifestation of her disability, with a resulting decline in her social/emotional status (describe):

When Complainant asked to inspect and review STUDENT's educational records so that she could confirm whether the program was conferring benefit on Allison, she could not get access to all of her child's records (describe):

At certain IEP meetings, school personnel read from notes and when Complainant asked to see the notes she was told they were "private notes" and not available to Complainant although they were clearly information personally identifiable to STUDENT and their use at the IEP meeting made them records "collected, maintained and used" by the district in regard to STUDENT.

Because STUDENT was regressing from year to year, Complainant asked the school district about extra services such as private counseling and services such as extended school year or extended school day. Complainant was generally told those were either not available or were not the public school's responsibility (describe):

The United States Supreme Court stated that a school district would have satisfied the IDEA statutory requirement to provide a disabled child with a free appropriate public education "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP." [Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176 at 203 (1982)]

STUDENT has not received a free appropriate public education from the school district pursuant to the IDEA and therefore her rights under Section 504 and the ADA were not met through compliance with the IDEA.

However, the fact that the school district determined STUDENT as eligible under the IDEA indicates that she meets the requirements for protection against discrimination under Section 504 and the ADA.

III. DISCRIMINATION UNDER SECTION 504

STUDENT has been denied the opportunity to benefit from the educational services offered by school district, in violation of 34 CFR 104.4(b)(1)(i) (describe):

STUDENT was provided with services that were not as effective as those provided to other students, in violation of 34 CFR 104.4(b)(1)(iii) (describe):

The aids, benefits and services offered to STUDENT did not afford her an equal opportunity to reach the same level of achievement offered to others, in violation of 34 CFR 104.4(b)(2) (describe):

The aids, benefits and services offered to STUDENT were not in the most integrated setting appropriate to her needs, in violation of 34 CFR 104.4(b)((2) (describe):

The school district has submitted sworn assurances to the federal government that their program is operated in compliance with Section 504.

The Office for Civil Rights should find that recipient school district has discriminated against STUDENT in violation of Section 504 and should order specific remedial action to overcome the effects of that past discrimination, pursuant to 34 C.F.R. 104.6(a)(1).

Complainants' suggestions for appropriate remedial action are at the end of this complaint.

An overriding factor in the school district's persistent discrimination against complainants is their failure and refusal to conduct the required self-evaluation due in 1978. See 34 CFR 104.6(c). There is no excuse for their delay, especially since the Office for Civil Rights published a 116 page guide in 1978 to assist recipients in meeting this duty. The school district can hardly argue that they did not know how to go about the self-evaluation.

Recipient school district never evaluated its policies and practices with the assistance of persons with disabilities as required by 34 CFR 104.6(c)(1)(i) (describe):

Recipient school district never modified any policies and practices as required by 34 CFR 104.6(c)(1)(ii) (describe):

Recipient school district did not take appropriate remedial steps to eliminate discrimination revealed in that self-evaluation as required by 34 CFR 104.6(c)(1)(iii) (describe):

Recipient school district did not produce or maintain a list of persons consulted, including representatives of the disability community, a description of areas examined and problems identified, or a description of modifications made and remedial steps taken, as required by 34 CFR 104.6(c)(2) (describe):

Recipient school district did not designate a person to coordinate its efforts to comply with Section 504 at the time required by 34 CFR 104.7(a). To the extent that they have more recently assigned an employee the paper title of responsible employee, they have not empowered that person with the authority required to comply with Section 504 nor has that individual taken the appropriate steps required (describe):

Such school district responsible employee has not taken any appropriate steps to notify participants and beneficiaries of their rights as required by 34 CFR 104.8(a) nor have they taken steps for continuing notification, past the initial notification, as required by 34 CFR 104.8(a) (describe):

Recipient school district has never notified complainant or other parents of disabled students of the recipients' duty, and the parents' rights, under Section 504, as required by 34 CFR 104.32(b) (describe):

Recipient school district has not provided a free appropriate public education regardless of the nature or severity of STUDENT's disability, as required by 34 CFR 104.33(a) (describe):

Recipient school district has not provided regular or special education and related services that are designed to meet the individual educational needs of STUDENT as required by 34 CFR 104.33(b)(1) because they do not satisfy the requirements of 104.34 (educational setting), 104.35 (evaluation and placement), and 104.36 (procedural safeguards) (describe):

Recipient school district does not provide for the education of STUDENT with persons who are not disabled to the maximum extent appropriate, in violation of 34 CFR 104.34(a) (describe):

Recipient school district did not demonstrate, before removing STUDENT from a regular setting, whether, with the use of supplementary aids and services in a regular setting, that STUDENT could be educated satisfactorily in that regular setting, in violation of 34 CFR 104.34(a) (describe):

Recipient school district did not arrange for the provision of extracurricular activities in a way that afforded STUDENT participation to the maximum extent appropriate to her needs, in violation of 34 CFR 104.34(b) (describe):

Recipient school district did not establish standards and procedures for the evaluation and placement of persons who need special education and related services related to Section 504, in violation of 34 CFR 104.35(b) (describe):

Recipient school district used tests that were invalid for testing STUDENT's complex needs in that they did not take into account STUDENT's sensory, manual and speaking skills; tests were not administered by trained personnel; and the tests were not administered in a way that accurately reflected STUDENT's abilities, in violation of 34 CFR 104.35(b)(1), (2) and (3) (describe):

Recipient school district did not conduct an evaluation pursuant to 34 CFR 104.35 before taking actions with respect to significant changes in placement subsequent to Allison's initial placement, in violation of 34 CFR 104.35(a) (describe):

Recipient school district did not take appropriate evaluation data into account in making placement decisions, in violation of 34 CFR 104.35(c) (describe):

Recipient school district did not afford access to needed counseling services, in violation of 34 CFR 104.37(a)(2) (describe):

Recipient school district did not establish a system of procedural safeguards that includes notice regarding Section 504, in violation of 34 CFR 104.36 (describe):

Recipient school district did not establish the system of procedural safeguards prior to taking action regarding identification, evaluation or educational placement, in violation of 34 CFR 104.36 (describe):

Recipient school district did not establish a system of procedural safeguards with regard to access to records by parents, in violation of 34 CFR 104.36 (describe):

Recipient school district did not establish a system of procedural safeguards that includes an impartial hearing on Section 504 issues, in violation of 34 CFR 104.36 (describe):

Recipient did not afford complainant access to nonacademic and extracurricular activities, in violation of 34 CFR 104.37(a)(2) (describe):

IV. NONCOMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT

School district is a public entity covered by the ADA Title IIA, as defined in 28 CFR 35.102(a).

STUDENT is an individual with a disability as defined in the ADA, 28 CFR 35.104

School district did not evaluate its current services, policies and practices; the effects thereof of any services, policies or practices that do not meet the requirements of the ADA; and the modifications required, as ordered in 28 CFR 35.105(a) (describe):

School district did not provide an opportunity to individuals with disabilities to submit comments to participate in the self-evaluation process, pursuant to 28 CFR 35.105(b) (describe):

School district does not keep on file and make available to public inspection the self-evaluation results, as required in 28 CFR 35.105(c) (describe):

School district did not complete the self-evaluation required under Section 504 so the required ADA self-evaluation must involve all of the policies, practices and procedures of the entity as affected by both Section 504 and the ADA, pursuant to 28 CFR 35.105(d) (describe): There is no excuse for the school district to have failed to perform the required self-evaluation since the Department of Education published a guide to assist governmental entities.

School district has not made available information regarding the provisions of the ADA, as required in 28 CFR 35.106 (describe):

School district has not designated a responsible employee to coordinate efforts to comply with the ADA and to carry out the entity's responsibilities under the ADA, and no one is doing so, in violation of 28 CFR 35.107(a) (describe):

School district has not published the name, office address and phone number of the responsible employee under the ADA, in violation of 28 CFR 35.107(a) (describe):

School district has not investigated complaints communicated to it alleging noncompliance or alleging actions that would be prohibited by the ADA, in violation of 28 CFR 35.107(a) (describe):

School district has not adopted or published grievance procedures that provide for prompt or equitable resolution of complaints alleging actions prohibited by the ADA, as required by 28 CFR 35.107(b) (describe):

School district has taken action in retaliation against the Complainant because of Complainant's advocacy on behalf of Student. Such retaliation has taken the form of -

"coercion" (describe):

"intimidation" (describe):

"threats" (describe):

and "interference" (describe):

in violation of 28 CFR 35.134(a) and (b).

V. SUGGESTED CORRECTIVE AND REMEDIAL ACTION

Complainant asks that the Office for Civil Rights investigate the above allegations.

Complainant will not accept Resolution Between the Parties (RBP). Previous attempts at resolution of these problems, including mediation, have failed because the school district would not implement the agreed-upon resolution. Since the school district cannot be trusted to implement a voluntary resolution, complainant will not accept early complaint resolution and expects Letters of Findings of Noncompliance and a Corrective Action Plan.

Corrective Action:

Complainant alleges that STUDENT has been injured by the school district's refusal to comply with the plain requirements of Section 504 and the ADA.

If the school district had conducted the self-evaluation with input from members of the disability community, the policies, practices and procedures that have kept Complainant from obtaining appropriate services for her child would likely have been modified many years ago.

Further, had the school district put in place the procedural safeguards of notice and grievance resolution that are required, Complainant would have availed herself of those routes for resolution many years ago rather than not knowing of any method for resolution.

Finally, had the school district come into compliance with Section 504 twenty school years ago, as required by law, every teacher and employee of the district would now be knowledgeable about Section 504 rights and procedures and Complainant would not now be facing the hostility and the disbelief that she faces in dealing with school personnel who have yet to learn anything about Section 504.

Complainant suggests that appropriate corrective action would include requiring the school district to come into compliance with Section 504 and the ADA in regard to:

Conducting the self-evaluations and making the results public;

Reporting publicly, as a result of the self-evaluation, of the policies, practices and procedures of the school district that were found to be discriminatory and which had to be changed;

Reporting publicly the remedial actions taken in regard to students who are found to have been discriminated against because of the existence of policies, practices and procedures which were discriminatory;

School District Board action establishing the grievance procedures and the authority of the responsible employee to investigate and resolve complaints;

School District Board action establishing a hearing process;

Development of a notice booklet under Section 504 and the ADA and publication of it to all parents, and

In-service training of all employees of the district, conducted by outside personnel, about their duties and parent and student rights under Section 504 and the ADA.

Remedial Action:

Once school district has conducted the self-evaluations required in the corrective action, school district is required to take appropriate remedial steps to eliminate discrimination revealed in that self-evaluation.

Complainant should be reimbursed immediately by the district for all expenses arising out of the school district's noncompliance, including evaluations, therapies, tutors, and the cost of attorneys fees to bring and pursue this complaint; and

School district must develop a remedial action plan to compensate STUDENT for the years of wrongful discrimination she has faced, pursuant to 34 C.F.R. 104.6(c)(1)(iii).

The above Complaint is, to the best of my knowledge, accurate and can be documented by the Complainant.

If my involvement can be of assistance in resolving this matter, I can be reached at the above addresses and numbers.

If an on-site investigation, or a meeting with the parent Complainant, is planned, I request that I be notified so that I can be included.

Sincerely,

[Attorney]

[Bar Number]

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Last updated 08/11/1999 22:38:52
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