Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and the Title II of the Americans with Disabilities Amendment Act of 2008 42 U.S.C. § 12132 (“ADA”) are civil rights statutes outlawing discrimination based upon disability. These laws may provide protections greater than a right to a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA).
- Section 504’s implementing regulations apply to any entity that receives federal funds, including IDEA funds. (34 CFR § 104.4)
- Title II of the ADA’s implementing regulations x applies to any public entity, including school districts. (28 CFR §§ 35.101, 35.104)
- Section 504 and the ADA protect any “individual with a disability,” defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. (28 CFR § 35.104, 34 CFR § 104.3)
- These laws provide that 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 provided by the school district. (28 CFR § 35.130, 34 CFR § 104.4)
- Section 504 and the ADA may cover students with disabilities who do not need special education and related services, and are therefore not protected by IDEA. Students who are eligible for special education under IDEA will almost always also have the protections of Section 504 and the ADA.
- Both Section 504 and the ADA prohibit retaliation and interference with rights. Of special note: The Department of Education’s 504 regulations incorporate the procedures, including the anti-retaliation provision, for enforcement of Title VI of the Civil Rights Act of 1964. (28 CFR § 35.134, 34 CFR § 100.7(e) and 34 CFR § 104.61 respectively).
CHANGES RELATED TO THE ADA AMENDMENTS ACT OF 2008
In January, 2012, USDOE published guidance on the ADAAA, providing the following:
Through a conforming amendment to Section 504, the ADDAAA changed the definition of disability under Section 504, broadening the potential individuals protected.
The definition of “disability” must allow for broad coverage, resulting in more protected students.
In most cases the ADAAA should quickly shift the inquiry away from whether the student is covered to the school district’s actions to provide equal educational opportunities to all. (http://bit.ly/copaa504faq)
United States Department of Education Guidance
- The USDOE Office of Civil Rights enforces Section 504 and the ADA and has provided guidance in several areas
Bullying and harassment of students with disabilities:, Complaints to OCR of bullying of students with disabilities have increased, underscoring the need for school district to understand their obligations. Most recently, in 2014, USDOE stated that “bullying of a student with a disability on any basis can . . . result in a denial of FAPE under Section 504 that must be remedied.” Schools therefore must address conduct that may constitute disability-related harassment as well as FAPE violations resulting from such harassment.(http://bit.ly/copaa504bullying (October 2014), http://bit.ly/copaa10bullying (October 2010), http://bit.ly/copaa00harassment (July 2000))
Effective communications with individuals with disabilities required by Title II of the ADA: . Title II’s regulations include the “effective communication” regulation, providing, “A public entity shall take appropriate steps to ensure that communications with [individuals] with disabilities are as effective as communications with others.” This regulation specifically addressing communication can create obligations greater than IDEA’s FAPE obligation. For example, in K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013), the court dismissed the IDEA FAPE claim but the student still had a viable claim for violation of the Title II effective communication regulation. (http://bit.ly/copaatitleii, 28 CFR § 35.160)
Claims for retaliation in violation of Section 504:. As USDOE explains, “Discriminatory practices are often only raised and remedied when students, parents, teachers, coaches, and others can report such practices to school administrators without the fear of retaliation. Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so.” (available at http://bit.ly/copaaret)
Access to appropriate education for youth in juvenile justice residential facilities: Federal civil rights laws, regulations, and guidance that prohibit disability discrimination against students in traditional public schools also apply to educational services and supports offered or provided to youth in juvenile justice residential facilities. (http://bit.ly/copaajuvenile)
Exhaustion of Administrative Remedies
The ADA and Section 504 claims do not require exhaustion of administrative remedies. However, IDEA provides::
Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part [IDEA’s procedures] shall be exhausted to the same extent as would be required had the action been brought under this part. (20 U.S.C. § 1415(l), [20 U.S.C §§ 1400 et seq.]
Therefore, a student covered by IDEA as well as Section 504 and ADA may need to exhaust IDEA’s remedies.