First, in Southeastern Community College v. Davis, the Supreme Court held that because educators need not make accommodations resulting in “a fundamental alteration in the nature of [a] program,” officials in North Carolina could exclude an applicant to nursing school. The Court found that because officials were unable to modify their program in a way that would have adequately prepared the applicant to perform safely as a nurse, she could be denied admission. In another illustrative case, the Seventh Circuit affirmed that Illinois’ state athletic association did not have to make a fundamental alteration to its track and field events in attempting to accommodate a high school runner with spastic quadriplegia related to his cerebral palsy by having to adopt separate para-ambulatory time standards and divisions for the student.
Second, in Davis, the Supreme Court also held that institutions can avoid compliance if the cost of modifications subjects them to “undue financial burden[s],” an issue that becomes a question of fact.
In School Board of Nassau County v. Arline, the Supreme Court explained the third defense under which otherwise qualified individuals with impairments can be excluded from programs only if their presence creates substantial risks of injury to themselves or others. Consequently, the Court reasoned that officials could not dismiss a teacher in Florida whose tuberculosis was in remission because it did not present a risk to anyone.
The expenses incurred by the boards in making accommodations for students, modifying facilities, and providing staff with professional development to better perform their duties should be fairly easy to document.
Further, while educators can likely prevent a child with poor vision from a biology laboratory class using scalpels to dissect specimens due to fear of injury, they would likely have to offer an accommodation to accomplish a goal similar to that of the laboratory class, such as providing computer-assisted programming.
Even with the defenses in place, Section 504 prohibits discrimination by requiring school officials to make individualized modifications for otherwise qualified students with disabilities. In other words, boards must provide aid, benefits, and/or services comparable to those available to children who are not disabled, including materials, teacher quality, length of school terms, and hours of instruction. Once identified and subject to the defenses, qualified students are entitled to appropriate educational programming.
Moreover, programs should not be separate from those available to children who are not impaired unless such segregation is necessary for them to be effective. If programs are permissibly separate, facilities must be comparable.
Because Section 504 does not offer financial assistance, SBOs and their teams must be mindful of its possible associated cost issues. This is important because while Section 504 requires boards to offer many potentially costly services, it does not provide additional federal funds. Consequently, SBOs and their teams must remain attentive to the potential costs they face under Section 504 by budgeting accordingly.
Even when facing the challenge of accurately determining Section 504 costs, it is important to consider whether SBOs could devise formulae to calculate such expenses. Such data would be useful because it might help SBOs and their teams to build a case calling for the federal government to provide financial assistance.
The potential difficulties associated with estimating the overall expense of Section 504 aside, SBOs working in conjunction with their Section 504 coordinators should be able to identify costs reasonably accurately. Likewise, the expenses incurred by the boards in making accommodations for students, modifying facilities, and providing staff with professional development to better perform their duties should be fairly easy to document.
Analyzing additional costs associated with Section 504 can still be daunting as SBOs and their teams work to ensure compliance with its provisions. In measuring costs, SBOs and their teams must consider how much time and cost teachers and other personnel typically devote to working with students, meeting with their parents to review whether children are eligible for 504 services, writing Section 504 Plans, and resolving disagreements about programming.
School personnel also spend time implementing and monitoring students’ progress on their 504 Plans by modifying such items as worksheets and/or documenting the administration of medication. Along with instructional matters, SBOs and their teams should keep in mind that under Section 504, they may also have to pay for accommodations allowing qualified students to participate in non-academic activities such as athletics and clubs.
It can certainly be challenging to calculate the expenses associated with providing Section 504 services because these costs can cover staff time directly working with students and making modifications. With practice, though, SBOs and their teams can learn about these costs so they can plan effectively.
SBOs and their teams need to consider a final cost issue related to Section 504: if educators fail to provide appropriate services under Section 504, and parents initiate successful litigation, which is much less frequent than under the IDEA, they may have to pay for their own lawyers and those of prevailing parents, along with providing equitable relief in the form of compensatory educational services children should have received. Thus, all educational personnel must be careful in evaluating whether children need Section 504 services in proactively complying to avoid litigation.
The third, and final, column on Section 504 will offer policy recommendations for SBOs and their teams on implementing its provisions.