Background
The Rehabilitation Act of 1973 provides protection against discrimination on the basis of one’s disability in any program or activity provided by school districts and other educational providers that receive federal funding. The purpose of Section 504 of the Rehabilitation Act of 1973 is to ensure that students who are Section 504 eligible have educational opportunities equivalent to their non-disabled peers.
Section 504 of the Rehabilitation Act of 1973 requires that:
No otherwise qualified individual with disabilities in the United States...shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance or activity conducted by any Executive agency or by the United States Postal Service (29 USC 794).
To comply with the duty to eliminate discrimination, school districts must examine their policies, programs, and practices to ensure students are not excluded from programs and services solely on the basis of their disability. Secondly, school districts must take steps to locate, evaluate, and place eligible students with disabilities under Section 504. Section 504 of the Act requires an analysis of student needs in comparative terms to the average student. Section 504 is not an aspect of special education. Rather it is a civil rights law. Therefore, the process of identifying students and determining necessary accommodations is a regular education function.
The Individuals with Disabilities Education Act (IDEA) is a federal law governing special education (34 CRF 300). It requires a school district to provide a free and appropriate education (FAPE). Both IDEA and Section 504 mandate the provision of FAPE. Under Section 504, FAPE may consist of either regular or special education and related aids and services, as implemented by an appropriate means, including, but not limited to, an IEP but is generally in the form of a Section 504 Plan (34 CFR 104.33). If, however, a student does not qualify for an IEP, he or she may qualify for a Section 504 Plan. IDEA requires that a child’s disability must adversely affect his or her education, requiring special education, whereas, in order to qualify under Section 504, a student must have a physical or mental impairment that substantially limits a major life activity or is regarded as having such impairment.
Exclusions from 504
Section 504 specifically excludes the following conditions from qualifying a student as disabled: substance abuse disorders resulting from illegal use of drugs, kleptomania, pyromania, exhibitionism, pregnancy, missing teeth, lactose intolerance, sick building syndrome, voyeurism, gender identity issues not resulting from physical impairment, or other sexual disorders/differences. A student with an educational deficit caused by economic, cultural or environmental disadvantages should not be considered to have an impairment under Section 504, nor should a student with educational deficits due to limited English proficiency.
What happens if a student qualifies under Section 504?
If a student qualifies under Section 504, it has been determined through a variety of sources that the student has a physical or mental impairment that substantially limits a major life activity, determined on a case-by-case basis. Documented sources may include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background and adaptive behavior. Once eligibility has been determined, a Section 504 Plan is prepared, implemented, and periodically re-evaluated (34 CFR 103.35).
What happens if a student qualifies under IDEA?
If a student qualifies under IDEA, an IEP is prepared and implemented in accordance with applicable regulations. To qualify for special education and related services under Part B of the IDEA, a student must be between the ages of 3 and 21 and must satisfy eligibility criteria.
Can a student qualify under both Section 504 and IDEA?
If a student qualifies under IDEA, the student also qualifies under Section 504 and, therefore, is covered under its nondiscrimination protections. A student who has been determined to be qualified under Section 504, however, is not necessarily considered disabled under IDEA if the student does not meet eligibility criteria. If a student does not qualify under IDEA, he or she should be evaluated under Section 504.
