Clearly, the cost of serving students with disabilities can be great. As noted in a previous column, providing services is challenging because while the IDEA offers some financial assistance for school boards, the amounts it provides are inadequate. Conversely, Section 504 does not offer financial assistance to school districts to help pay for making modifications for students.
According to a 2023 report from the U.S. Department of Education’s Office for Civil Rights based on 2020–2021 data, of the 49,200,000 public school students in the United States, approximately 8,400,000, or around 14%, received IDEA services; about 1,600,000, or nearly 3%, were covered by Section 504 only.
Acting partially in response to litigation over the educational rights of children with disabilities, one of which occurred in Washington, D.C., Section 504 of the Rehabilitation Act of 1973 was the first federal civil rights law protecting the rights of the disabled.
According to Section 504, which is codified as a labor, rather than education, statute, “[n]o otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....”
Under Section 504, recipients of federal financial aid must file assurances of compliance; take remedial actions if they violate the law, and act voluntarily to overcome the effects of conditions that limit the participation of students with disabilities in their programs.
Further, recipients of federal funds must conduct self-evaluations; designate a staff member, typically at the central office level, as compliance coordinator; adopt grievance procedures; and notify students and their parents that their programs are nondiscriminatory.
While Section 504 extends broad-based protection to students, staff, and visitors, this column focuses on the educational needs of children. Section 504 defines an individual with a disability as any person who "has a physical or mental impairment which substantially limits one or more of such person's major life activities, … has a record of such an impairment, or … is regarded as having such an impairment.”
Major life activities include caring for oneself, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Physical or mental impairments include, but are not limited to, 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; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disorders.
To have records of impairments, individuals must have histories of, or been identified as having, mental or physical impairments substantially limiting one or more major life activities, such as, for children, attending school. An individual regarded as having an impairment has:
Otherwise Qualified Students
Once students are identified as having impairments, the next step is to determine whether they are “otherwise qualified.”
In Southeastern Community College v. Davis, the Supreme Court ruled that persons who are “otherwise qualified,” meaning they are eligible to participate in programs or activities despite the existence of impairments, must be permitted to do so as long as they can be provided with “reasonable accommodations.”
In order to be “otherwise qualified,” students must be “…of an age during which nonhandicapped persons are provided such services, … of any age during which it is mandatory under state law to provide such services to handicapped persons, or … [a child] to whom a state is required to provide a free appropriate public education.”
Reasonable Accommodations
Children who are eligible to participate in programs or activities despite the existence of their impairments must be permitted to participate in them as long as they can do so with “reasonable accommodation[s].”
Reasonable non-academic accommodations for children involve minor adjustments, such as permitting a student with a visual impairment to bring a service dog to school or giving a student with an orthopedic impairment a key to a school elevator to help her get around more easily. Typical academic accommodations involve modifying classroom seating arrangements to place students in locations minimizing distractions that may interfere with their abilities to concentrate, allowing more time to complete tests or assignments, and providing tutors.
In making modifications, board officials do not necessarily have to make all classrooms and/or areas of buildings available. Instead, it may be sufficient to bring services to children, such as offering a keyboard for musical instruction, rather than moving a music classroom for a student who wishes to take piano classes.
Once students are identified as needing accommodations, school officials must work with their parents to develop written Section 504 Plans. Unlike the Individualized Educational Programs, students with disabilities receive under the IDEA, federal law does not dictate the content of Section 504 plans, which are much more open-ended and often less detailed.
The next column reviews defenses to Section 504 and cost issues.