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The Amazing and Creative Things You Can Do Under Section 504
by Jim Comstock-Galagan, Esq.
(transcribed by Pamela Wright)

Note: Jim Comstock-Galagan presented this program about discipline of students under IDEA or Section 504 at the 2013 Institute of Special Education Advocacy.

As we discuss Section 504 and the Americans with Disabilities Amendments Act of 2008 (ADAA), you need to know that recent amendments to Section 504 and the ADAA greatly expanded coverage under Section 504/ADA.

The ADA Amendments Act, Public Law No. 110–325 (2008), overturned Supreme Court precedent that narrowed coverage under the ADA and Section 504. The reauthorized ADAA provides that impairments should be considered in their unmitigated state, and broadened the definition of major life activities in the statute’s coverage provision.

We recommend that you read the excellent article, A New Look at Section 504 and the ADA in Special Education Cases by Professor Mark C. Weber, national expert in disability law and Professor of Law at DePaul University.

Eligibility Under IDEA and Section 504

“School districts seem increasingly eager to decide that children are not eligible for services under the Individuals with Disabilities Education Act (IDEA) …and courts frequently uphold these decisions…”

“If eligibility under IDEA continues to be cut back, parents of children with disabilities are likely to bring more claims for services under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (2011), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131–50 (2011).

“Section 504 forbids disability discrimination by federal grantees, including local school districts; Title II forbids disability discrimination by state and local governments, again including school districts. The regulations promulgated to enforce section 504 require that all children with disabilities, as defined by section 504 and the ADA, be provided with free, appropriate public education as interpreted by the section 504 regulations. (34 C.F.R. § 104.33(a)). That entitlement does not hinge on IDEA eligibility.”

Historically, Section 504 was used to supplement IDEA for compensatory damages, but there has been very little litigation under Section 504 in other areas.

The ADAA expanded the definition of which children and adults qualify for protections under the law. As an example, consider a child has ADHD and is doing well in school because his medication is working. Is this child eligible for protections under Section 504?

Free appropriate education under Section 504 v. IDEA

The definition of “free appropriate public education” under Section 504 is different than the definition under the IDEA. In 504 cases, the question that must be asked and answered is this:

Are the needs of the disabled child or children being met as adequately as the needs of nondisabled children?

Jim asserted, “I believe FAPE under 504 goes further than FAPE under IDEA.”

He used graduation rates as an example: “Assume the overall graduation rate in your State is 72%. The graduation rate of kids with disabilities who are not intellectually disabled is 52%. Twenty percent fewer kids with disabilities graduate with a high school diploma."

"Are the needs of disabled children being met as adequately as the needs of nondisabled children? If they are not, aren’t these children being discriminated against as a result of their disabilities?”

“This is a powerful argument that is not available under IDEA.”

“Perhaps we’ve been so focused on meeting the unique and individualized needs of kids with disabilities that we missed the forest for the trees.”

504 & Discipline

“I specialize in discipline issues in my practice. I recommend that you read an expulsion case from 1981, S-1 v. Turlington, 635 F.2d 342.

"Expulsion is a change of placement. If the child’s behavior is related to disability, the school cannot suspend the child or terminate services.

"Kids are often assigned to alternative schools for 45 days or longer. Under IDEA, kids are subject to long-term suspensions for weapons, drugs, and seriously bodily injury, but many kids are placed in alternative schools for relatively minor issues. Long-term suspensions (beyond 10 days) are a change in placement.

"S-1 v. Turlington says schools cannot change the child’s placement under these circumstances. It’s time to revisit S-1 v. Turlington."

Disparate Impact and Disproportionate Treatment

In discussing intentional or unintentional discrimination, Jim described a recent complaint filed with OCR. The complaint was based on title VI and Section 504/ADAAA. The complaint focused on dramatically different discipline rates and referral rates to alternate schools between disabled and non-disabled kids.

Restraint and Seclusion

504 opens up other issues, including restraint and seclusion.

How many school districts in your state have policies on restraint and seclusion? How many school districts in your state have restraint and seclusion policies for nondisabled kids?

None?

Do restraint and seclusion policies only apply to kids with disabilities. When schools develop these policies, shouldn't they apply to all kids? If the policies only apply to kids with disabilities, isn't this discrimination?

If you are representing a 504 kid, the child is entitled to a free appropriate public education as defined under Section 504. Since restraint and seclusion policies only apply to kids with disabilities, you want your child to be treated as a nondisabled kid.

The key is equal treatment. If a school uses restraint and seclusion, this has to apply to all students.

On May 15, 2012, the U. S. Department of Education issued a Restraint & Seclusion: A Resource Document that discourages schools from using restraint and seclusion.

The Resource Document includes 15 principles that describe how school behavioral interventions can reduce or eliminate the use of restraint or seclusion. These principles offer states, districts and other education leaders a framework for developing appropriate policies related to restraint and seclusion to ensure the safety of adults and children.

The Secretary of Education, Arne Duncan said, “Ultimately, the standard for educators should be the same standard that parents use for their own children. There is a difference between a brief time out in the corner of a classroom to help a child calm down and locking a child in an isolated room for hours. This really comes down to common sense. ”News release Link to Restraint & Seclusion: Resource Document

Related Articles

How Safe Is The Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies (PDF) by Jessica Butler. This Report wasupdated to include changes in 2012 and early 2013 to state restraint and seclusion laws and policies, and more fully discusses laws applicable to all children. Get a bullet point overview of the information and the status of all state seclusion and restraint policies (Updated in May 2013)

Restraint and Seclusion Resource Document. (USDOE) Describes 15 principles that states, local school districts, preschool, elementary, and secondary schools, and parents should use when states, localities, and districts develop and implement policies and procedures which should be in writing related to restraint and seclusion. These principles are intended to ensure that restraint or seclusion in schools does not occur except when there is a threat of imminent danger of serious physical harm to the student or others. Restraint and seclusion should occur in a manner that protects the safety of all children and adults at school. (May 2012)

More Resources on Restraint, Seclusion and Abuse

Last revised: 07/29/13

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