eds 513: legal issues in special education eds 513: legal issues in special education section 504 of...

EDS 513: Legal Issues EDS 513: Legal Issues in Special Educationin Special Education

Section 504 of Section 504 of

the Rehabilitation the Rehabilitation

Act of 1973Act of 1973

©Kristina Krampe, 2006

IntroductionIntroduction

Prior to beginning this presentation, you Prior to beginning this presentation, you should have:should have:Read Chapter 6 of Yell’s (2006)Read Chapter 6 of Yell’s (2006) The Law and The Law and

Special Education, 2nd EditionSpecial Education, 2nd Edition

Upon completion of this presentation, you Upon completion of this presentation, you should be able to:should be able to:Summarize the implications of Section Summarize the implications of Section 504 for students with disabilities504 for students with disabilities

Section 504 vs. IDEA

Purpose of Section 504Purpose of Section 504

Basic purpose is to prohibit discrimination Basic purpose is to prohibit discrimination against persons with disabilities in programs that against persons with disabilities in programs that receive federal financial assistancereceive federal financial assistance

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

Protection under Protection under Section 504Section 504

Persons covered under Section 504:Persons covered under Section 504:Anyone who has a physical or mental Anyone who has a physical or mental

impairment which substantially limits one or impairment which substantially limits one or more major life activitiesmore major life activities

Anyone who has a record of such an Anyone who has a record of such an impairmentimpairment

Anyone who is regarded as having such Anyone who is regarded as having such an impairmentan impairment

Part 1: Physical and Part 1: Physical and Mental ImpairmentsMental Impairments

Physical Impairments Physical Impairments Physiological disorder or conditionPhysiological disorder or condition Cosmetic disfigurementCosmetic disfigurement Anatomical lossAnatomical loss

Mental ImpairmentsMental Impairments Mental retardationMental retardation Organic brain syndromeOrganic brain syndrome Emotional or mental illnessEmotional or mental illness Specific learning disabilitiesSpecific learning disabilities

Relevant Court CasesRelevant Court Cases

E.E. Black Ltd. v. Marshall (1980)E.E. Black Ltd. v. Marshall (1980) Expanded the definition of impairment Expanded the definition of impairment

Any condition which weakens, diminishes, Any condition which weakens, diminishes, restricts, or otherwise damages an individual’s restricts, or otherwise damages an individual’s health or physical or mental activity health or physical or mental activity

Asthma, deafness, blindness, diabetes, cerebral palsyAsthma, deafness, blindness, diabetes, cerebral palsyTourette’s syndrome, multiple sclerosis, epilepsyTourette’s syndrome, multiple sclerosis, epilepsyChronic fatigue syndromeChronic fatigue syndrome, AD/HD, kidney disease

Relevant Court CasesRelevant Court Cases

Daley v. Koch (1986)Daley v. Koch (1986)If a person has not been diagnosed as having If a person has not been diagnosed as having

a psychological illness or disorder, he or she a psychological illness or disorder, he or she does not have a disability under Section 504 does not have a disability under Section 504

Exclusion of persons affected by the illegal Exclusion of persons affected by the illegal use or possession of drugs or alcohol and use or possession of drugs or alcohol and persons who have sexual behavior persons who have sexual behavior disorders, pyromania, kleptomania, etc.disorders, pyromania, kleptomania, etc.

Major Life ActivityMajor Life Activity

A major life activity includes:A major life activity includes:Self careSelf carePerforming manual tasksPerforming manual tasksWalkingWalkingSeeingSeeingHearingHearingBreathingBreathingLearningLearningWorkingWorking

Defining Substantial Defining Substantial LimitationLimitation

Unable to perform a major activity that an Unable to perform a major activity that an average person could performaverage person could perform

OROR

Significantly restricted in the manner or duration of performance of major life activity when compared to an average person

Determining Substantial Determining Substantial LimitationLimitation

Factors to consider:

What is the nature and severity of the What is the nature and severity of the impairment?impairment?

What is the duration or expected duration of What is the duration or expected duration of the impairment?the impairment?

What permanent or long-lasting effect What permanent or long-lasting effect

results from the impairment?results from the impairment?

Protection Under Protection Under Section 504Section 504

All students with disabilities are protected All students with disabilities are protected from discrimination in elementary, from discrimination in elementary, secondary, and postsecondary schoolssecondary, and postsecondary schoolsEqual opportunity to benefit from education as Equal opportunity to benefit from education as

students without disabilities students without disabilities Equivalent, not identical, services or programs Equivalent, not identical, services or programs

must be providedmust be providedReasonable accommodationsReasonable accommodations

Protection from Protection from DiscriminationDiscrimination

School programs must be accessible to School programs must be accessible to students with disabilitiesstudents with disabilitiesNot all parts of school must be accessibleNot all parts of school must be accessible

May not result in segregation of students with May not result in segregation of students with disabilities in one settingdisabilities in one setting

Applies to all facilities within a schoolApplies to all facilities within a schoolClassrooms, gyms, water fountains, restroomsClassrooms, gyms, water fountains, restrooms

Facilities for students with disabilities must Facilities for students with disabilities must be comparable to general education be comparable to general education facilitiesfacilities

Protection from Protection from DiscriminationDiscrimination

Architectural accessibilityArchitectural accessibility

Program accessibilityProgram accessibility

Provision of related servicesProvision of related services

Participation in extracurricular and nonacademic Participation in extracurricular and nonacademic activitiesactivities

DaycareDaycare Summer recreation programsSummer recreation programs Afterschool careAfterschool care

Reasonable Reasonable AccommodationsAccommodations

Reasonable accommodations must be Reasonable accommodations must be provided to facilitate equal opportunity to provided to facilitate equal opportunity to persons with disabilitiespersons with disabilitiesDefinition has been vague Definition has been vague Cannot impose excessive financial or Cannot impose excessive financial or

administrative burdensadministrative burdensCannot require a fundamental or Cannot require a fundamental or

substantial modification in the programsubstantial modification in the program


PHYSICAL ACCOMMODATIONS · Post schedules on board · Post classroom rules · Preferential seating · Organize workspace · Use color codes · Quiet area for study · Maintain adequate space between desks INSTRUCTIONAL ACCOMMODATIONS · Keep directions clear and simple · Provide written and oral directions · Chunk assignments into manageable tasks · Use peer tutors or designated notetaker


INSTRUCTIONAL ACCOMMODATIONS cont. · Record lectures and assignments · Provide a partial grade based on individual progress · Use multi-sensory manipulatives · Give tests in distraction-free area BEHAVIORAL ACCOMMODATIONS · Give positive verbal or written feedback · Provide reward systems and incentives · Increase the frequency and immediacy of reinforcement · Use private signals · Develop individualized rules · State tangible goals and timetable · Student contracts · Communicate with parents weekly/daily

Avoiding DiscriminationAvoiding Discrimination

Disabling condition can be considered if it Disabling condition can be considered if it is a relevant factoris a relevant factor

Schools must take actions to avoid Schools must take actions to avoid discriminationdiscriminationStructural alterationsStructural alterationsEquipment redesignEquipment redesignClass reassignmentClass reassignmentGeneral classroom interventionsGeneral classroom interventions

Discrimination in Discrimination in Postsecondary EducationPostsecondary Education

Applies to postsecondary educationApplies to postsecondary educationStudents cannot be discriminated against in Students cannot be discriminated against in

admissions to postsecondary institutionsadmissions to postsecondary institutionsNonacademic programs and services cannot Nonacademic programs and services cannot

discriminate against students with disabilitiesdiscriminate against students with disabilitiesStudent housing Student housing Athletics Athletics Vocational and placement servicesVocational and placement servicesFinancial assistanceFinancial assistance

Free Appropriate Public Free Appropriate Public Education (FAPE)Education (FAPE)

AllAll qualified school-aged children are qualified school-aged children are entitled to a free appropriate public entitled to a free appropriate public education (FAPE)education (FAPE)

Issues remain over whether FAPE under Section 504 requires a higher standard to meet educational needs than reasonable accommodations

Free Appropriate Public Free Appropriate Public Education (FAPE)Education (FAPE)

Provided at no cost to parents/guardiansProvided at no cost to parents/guardiansMust be individualized Must be individualized Includes specially designed instruction Includes specially designed instruction

and related services as requiredand related services as requiredDeveloped by a group of persons Developed by a group of persons

knowledgeable about the studentknowledgeable about the studentProvided in least restrictive Provided in least restrictive

environmentenvironment

Evaluation and Evaluation and Placement ProceduresPlacement Procedures

Evaluation must occur before placement to Evaluation must occur before placement to prevent misclassification or misplacementprevent misclassification or misplacement Instruments selected with documented validityInstruments selected with documented validity Instruments administered by trained personnelInstruments administered by trained personnel Instruments that assess specific educational areas Instruments that assess specific educational areas Instruments selected so that results accurately show Instruments selected so that results accurately show

student’s aptitude or achievement levelstudent’s aptitude or achievement level Information from a variety of sources collectedInformation from a variety of sources collected

Procedural SafeguardsProcedural Safeguards

Parents must be notified of rights in native Parents must be notified of rights in native language or primary mode of communicationlanguage or primary mode of communication

Parents may receive an impartial hearing Parents may receive an impartial hearing with counsel to settle disagreements with with counsel to settle disagreements with schoolschool

Parents must be notified when eligibility or Parents must be notified when eligibility or placement actions are takenplacement actions are taken

Parents may examine all educational Parents may examine all educational recordsrecords

School District School District ResponsibilitiesResponsibilities

Appointment of a Section 504 CoordinatorAppointment of a Section 504 Coordinator Ensures that the district is in compliance with Ensures that the district is in compliance with

mandates of Section 504 mandates of Section 504 Keeps the public and school personnel informed Keeps the public and school personnel informed

so that the district does not discriminateso that the district does not discriminateDevelops the procedural safeguards and Develops the procedural safeguards and

grievance proceduresgrievance proceduresConducts self-evaluation in the district to Conducts self-evaluation in the district to

ensure compliance with the mandates of ensure compliance with the mandates of Section 504Section 504


Locate and identify students who may Locate and identify students who may qualify for special servicesqualify for special servicesAnnual child findAnnual child find

Students that transfer from other districts, students Students that transfer from other districts, students in private schools, children who are homelessin private schools, children who are homeless

Referral for evaluationReferral for evaluationTeachers, parents, administrators, othersTeachers, parents, administrators, othersEvaluation of students not eligible under IDEAEvaluation of students not eligible under IDEAEvaluations completed in timely mannerEvaluations completed in timely manner


School district must develop a 504 plan School district must develop a 504 plan for students with disabilitiesfor students with disabilities Developed by a multidisciplinary teamDeveloped by a multidisciplinary teamIncludes accommodations and modifications Includes accommodations and modifications

to student’s educational programto student’s educational programProvided in general education or special Provided in general education or special

education classroomseducation classroomsReevaluation before significant changes Reevaluation before significant changes

or periodically or periodically

Section 504 PlanSection 504 Plan

• Describes the nature of the student’s disability and how it impacts a major life activity

• Provides the basis for determining the disability

• Documents the educational impact

• Describes necessary accommodations

• Documents the placement

Avoiding Complaints Avoiding Complaints and Hearingsand Hearings

• To avoid complaints and hearings:To avoid complaints and hearings:Make good faith efforts to provide appropriate Make good faith efforts to provide appropriate

programsprogramsInvolve parents to the greatest extent possibleInvolve parents to the greatest extent possibleConduct thorough and individualized Conduct thorough and individualized

evaluationsevaluationsDocument all school and parent contactsDocument all school and parent contactsUse mediation to resolve disputes

Filing a GrievanceFiling a Grievance

• School district must establish grievance School district must establish grievance proceduresproceduresGrievances filed if discrimination based on Grievances filed if discrimination based on

disability is thought to occurdisability is thought to occurCan be filed by parent, student, community Can be filed by parent, student, community

member, or staff membermember, or staff memberNo set requirements for grievance No set requirements for grievance

proceduresprocedures

Filing a ComplaintFiling a Complaint

Grievances can be filed with the Office of Grievances can be filed with the Office of Civil Rights (OCR)Civil Rights (OCR)Must be filed within 180 days of the alleged Must be filed within 180 days of the alleged

discriminationdiscriminationCan be filed even if the local district grievance Can be filed even if the local district grievance

procedures have not been exhaustedprocedures have not been exhaustedPrior to investigation, the school can Prior to investigation, the school can

attempt to make a settlement with the attempt to make a settlement with the complainantcomplainant


OCR Investigation ProcessOCR Investigation ProcessPre-determination settlement (PDS) Pre-determination settlement (PDS)

Matter settled without admitting to violationMatter settled without admitting to violationSchool agrees to actions to resolve issuesSchool agrees to actions to resolve issuesSaves time and expenseSaves time and expense

On-site investigationOn-site investigationOCR interviews staff and reviews OCR interviews staff and reviews

documentationdocumentationVerbal finding issued by OCRVerbal finding issued by OCR


• On-Site InvestigationOn-Site InvestigationNo violation found = End of the investigationNo violation found = End of the investigationViolation found & OCR corrective action Violation found & OCR corrective action

requirements issuedrequirements issuedDistrict complies = Letter-of-finding (LOF) violation District complies = Letter-of-finding (LOF) violation

corrected issuedcorrected issuedDistrict does not comply = LOF violation District does not comply = LOF violation

uncorrected issued & negotiations beginuncorrected issued & negotiations begin If negotiations are unsuccessful, termination of If negotiations are unsuccessful, termination of

federal funds to the district can occurfederal funds to the district can occur