Legal Files Archives

Another Look at Section 504
By Phil Stinson, Esq.

AUTHOR’S NOTE: You may download copies of the full Section 504 statute and regulations in pdf format from my website, http://www.specialedlaw.net.

Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discrimination based on disability by programs receiving federal funding. As such, Section 504 applies to all public schools, as well as any private school that receives federal funding. While the Americans with Disabilities Act ("ADA") prohibits discrimination based on disability by private schools, certain parochial schools are exempt from the ADA. Section 504, however, does apply to parochial schools that receive federal funding. Many parochial and diocesan schools across the country receive federal subsidies, such as school lunch programs and reading programs.

As to public schools, both the Individuals with Disabilities Education Act ("IDEA") and Section 504 require that students be afforded a free appropriate public education ("FAPE"). A student is entitled to an Individualized Education Plan ("IEP") under the IDEA if the student requires specially designed instruction ("SDI") in order to make meaningful educational progress. A student is entitled to the protections of Section 504 if the student needs accommodations in order to access the educational program. All students with IEPs are automatically protected under Section 504 because SDI is an accommodation based on disability, whereas not all students that are entitled to the protections of Section 504 are eligible for an IEP under the IDEA because some students require accommodations but do not require SDI.

A student is considered to have a disability if the student has a physical or mental impairment which substantially limits one or more of the student’s major life activities, has a record of such impairment, or is regarded as having such an impairment. The following are examples of conditions that might be covered under Section 504:

• Attention deficit hyperactivity disorder
• Allergic reactions/asthma
• Cancer
• Cerebral palsy
• Communicative diseases (e.g., hepatitis, HIV, tuberculosis)
• Depression
• Diabetes
• Drug/alcohol addiction (if no longer using)
• Dyslexia
• Eating disorders (e.g., anorexia, bulimia)
• Emotional/behavioral disorders (e.g., conduct disorders)
• Heart disease
• Hemophilia
• Post-traumatic stress syndrome
• Physical/sexual abuse
• Sexually transmitted diseases
• Social maladjustment
• Suicidal tendencies
• Temporary conditions due to illness or accident

The Office for Civil Rights ("OCR") at the U.S. Department of Education has published a list of examples of accommodations that might be appropriate for students under Section 504:

• A student with a long-term, dehabilitating medical problem, such as cancer, kidney disease, or diabetes may be given special consideration to accommodate the student’s needs. For example, a student with cancer may need a class schedule that allows for rest and recuperation following chemotherapy.

• A student with a learning disability that affects the ability to demonstrate knowledge on a standardized test or in certain testing situations may require modified test arrangements, such as oral testing or different testing formats.

• A student with a learning disability or impaired vision that affects the ability to take notes in class may need a note taker or tape recorder.

• A student with a chronic medical problem such as kidney or liver disease may have difficulty in walking distances or climbing stairs. Under Section 504, this student may require handicapped parking, sufficient time between classes, or other considerations, to conserve the student’s energy for academic pursuits.

• A student with diabetes, which adversely affects the body’s ability to manufacture insulin, may need a class schedule that will accommodate the student’s special needs.

• An emotionally or mentally ill student may need an adjusted class schedule to allow time for regular counseling or therapy.

• A student with epilepsy who has no control over seizures, and whose seizures are stimulated by stress or tension, may need accommodations for such stressful activities as lengthy academic testing or competitive endeavors in physical education.

• A student with arthritis may have persistent pain, tenderness or swelling in one or more joints. A student experiencing arthritic pain may require a modified physical education plan.

One final note. Parents often ask me if their child "needs an IEP." Both the IDEA and Section 504 provide the entitlement to services. However, under current law there are greater protections for students with disabilities facing school disciplinary action if the student has an IEP in place. For example, under the IDEA, if a student commits an offense that is a manifestation of the child’s disability, the school may be prohibited from expelling the student from school and limited to imposing a forty-five day alternative placement. I often tell parents that if their child is prone to problematic behavioral manifestations at school that are related to the child’s disability, it is imperative that the child have an IEP in place, and not just an accommodation plan or service agreement pursuant to Section 504. This is particularly true in the post-Columbine days of hysteria by school principals. Many special children receiving special education in an inclusion educational environment have been suspended from school, expelled, and even arrested and hauled away from school in handcuffs for manifesting behaviors that are solely related to a disability. In the past year, I have seen an alarming increase of arrests of children with autism in public schools, especially children with Asberger’s syndrome. Parents of such children should insist that their child’s IEP include a behavior management plan, specifically to include an action plan for de-escalation of behaviors and should affirmatively state that mental health counselors are to be summonsed and not police officers when a crisis - or perception of a crisis - erupts. Most often, it is my experience that children that are arrested at school are not receiving FAPE, and quite often are not appropriately placed, or the child’s IEP is not being implemented.

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Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

The Legal Files are provided by Special Child, The Resource Foundation for Children with Challenges, and Stinson Law Associates, P.C., for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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