Section 504 is not just “IDEA Lite”
by JoAnna J. Barnes, Esq
Students with disabilities in the K-12 public school system are entitled to rights and protections under the Individuals with Disabilities Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act (504). Too often the focus of parents and advocates is only on IDEA, yet 504/ADA also provides strong rights and protections for K-12 public school students with disabilities.
Many assume Section 504 only requires a school to provide a student with accommodations; this is a common misunderstanding. Under §504/ADA, students with disabilities are entitled to accommodations, services, supports, and technology to ensure that they have equal access to the public school system.
Section 504 & the ADA: An Introduction
Section 504 of the Rehabilitation Act is an anti-discrimination law that states:
“No otherwise qualified individual with a disability in the United States, as defined in section [705 (20)] of this title, shall, solely by reason of his or her 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 …”
Section 504 requires a K-12 public school to provide a free appropriate public education [FAPE] to each student determined to have a “disability” as defined by Section 504. This requires the school to design the regular or special education and related services provided to a student with a disability so that it meets the individual educational needs of that student as adequately as the needs of students without a disability are met.
The §504 regulations on FAPE also require adherence to certain procedures intended to facilitate provision of a FAPE, including testing and evaluation, and notice to parents of educational plans for their children.
Title II of the Americans with Disabilities Act of 1990 (ADA Title II) applies to governmental entities and mandates that a public entity (which includes public schools) (1) cannot deny participation in, or exclude people with disabilities from the benefits of programs because of inaccessible facilities, (2) must ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others, and (3) must furnish “auxiliary aids and services,” e.g., sign language interpreters, assistive listening devices, and alternate format materials.
Together Section 504 and the ADA provide powerful rights and protections to students with a disability. They require a K-12 public school: (1) to provide FAPE to a student with a disability, including the benefits of any course offered to students without a disability – such as honors or AP classes; (2) to have procedural safeguards to protect student with a disability; and (3) to do the testing and evaluations needed to determine if a student has a disability and to develop the education plan (the Section 504 Plan) for the student with a disability.
One thing the law does not require is that the Section 504 Plan is in writing. This is because the rights of a student with a disability under Section 504 exist the moment the school has notice of the disability – a formal finding and written Section 504 Plan are not required for a student to be eligible for Section 504 rights and protections. Unfortunately, some schools use this provision of the law (that was intended to broaden protections) to allow the school to make it difficult to learn the accommodations and services to which a student may be entitled.
Reasons to Pursue a Section 504 Plan instead of an IEP
A student with a disability might pursue a Section 504 Plan because they may not meet the strict criteria for eligibility under IDEA. Under IDEA, a student can be determined to be a “child with disability” and thus eligible for an Individualized Education Program (IEP) only if they have one of the conditions listed in the law AND “who, by reason [of that condition] need[s] special education and related services.” 20 USC Section 1401(3) If these two tests are not met, then the student does not receive special education.
Under Section 504/ADA the criteria for an individual to be found to have disability is much broader. Under Section 504/ADA there are three requirements: the student must have (1) a physical or mental impairment that (2) substantially limits (3) one or more major life activities of such individual. Thus, students who do not meet the strict criteria in IDEA may meet the broader definition of disability in Section 504/ADA. For example, the student’s impairment may not be one of the conditions listed in IDEA. Or, the student may not need special education and related services.
As a best practice, schools should automatically consider a student who is exited from special education, or found not eligible in an initial evaluation for special education, for Section 504. If this is not the practice in a school district, then advocates and parents should be prepared to immediately request a meeting to consider if the student is eligible for a Section 504 Plan.
Another reason a student with a disability might pursue a Section 504 Plan is the low bar for academic achievement set by IDEA. Often an IEP will target a student’s goal to be at the low average achievement level for their grade or age. Section 504/ADA does not have this limitation. A Section 504 Plan does not guarantee a student’s success, but it can guarantee a student with a disability has access to the same opportunities for success as a student without a disability in all of the programs and courses offered at a school. A Section 504 Plan does not modify the curriculum and the student is still required to demonstrate mastery of the material, however a Section 504 Plan removes the barriers a student with a disability may encounter in accessing the curriculum and in assessments.
One challenge with Section 504/ADA is that the process for disputing a school’s decisions is not as clearly delineated as it is with IDEA. Many advocates prefer IDEA because the regulations provide a clear roadmap on disputes. Additionally, IDEA includes the possibility a student may obtain an Independent Educational Evaluation (IEE); this right is not in the Section 504 regulations.
Section 504/ADA is a powerful tool that should be in every advocates toolbox. Learn more about these laws at the LDA 58th Annual Conference in February 2021.
About JoAnna J. Barnes, Esq
JoAnna is the parent of two young adults with learning disabilities. She has been involved with LDA since 2002 when her older child, then in 2nd grade, was struggling in school. She credits LDA for her daughter finally being identified as LD in 3rd grade. JoAnna lives in Chapel Hill, NC, and is active with LDA of North Carolina serving on its Board of Directors and now as President. She is Chair of the LDA Advocacy Committee, and one of two LDA representatives to the National Joint Committee on Learning Disabilities. In 2015 she chaired a LDA task force on accessibility of testing accommodations for adults with LD who apply to take the high school equivalency exam. JoAnna holds a B.A. and J.D. from Georgetown University, and is a member of the Maryland and District of Columbia Bars.
U.S. Department of Education, Office of Civil Rights, Frequently Asked Questions about Section 504 and the Education of Children with Disabilities
U.S. Department of Education, Office of Civil Rights, Parent & Educator Resource Guide to Section 504 in Public Elementary & Secondary Schools, December 2016
Disability Rights Education and Defense Fund, A Comparison of ADA, IDEA, and Section 504
The Learning Rights Law Center and Dentons US LLP, ADA and 504 – When is an Individual with a Learning Disability Protected by These Laws? https://ldaamerica.org/info/ada-and-504/