A Word of Caution

No two cases are exactly alike. This material is designed to provide educators with a broad understanding of certain aspects of Section 504 of the Rehabilitation Act of 1973. This material does not include every aspect of the law. You are strongly encouraged to seek a legal opinion from your school district's legal counsel regarding any specific case.

Table of Contents

I. Purpose

The purpose of this material is to provide educators with a better understanding of Section 504 of the Rehabilitation Act of 1973. This material focuses on the provisions of Section 504 which require that students with disabilities have an equal opportunity to participate in a Free Appropriate Public Education, inclusion in extra-curricular activities, the provisions pertaining to discipline, and procedural safeguards available under Section 504. This material is not intended to substitute for legal counsel, nor is it intended to provide an exhaustive statement of the law.

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II. Brief Overview of Section 504

Section 504 applies to the recipients of grants from the federal government. Essentially, all public school districts are covered by Section 504 because they receive some form of federal financial assistance. See Marshall v. Sisters of the Holy Family of Nazareth, 44 IDELR 190 (E.D. Pa. 2005) (Section 504 does not apply to a private religious school that receives no federal funding).

Fundamentally, Section 504 is an anti-discrimination statute. In the educational system, it prohibits districts from discriminating against qualified students with disabilities on the basis of handicap.

The Office for Civil Rights (OCR) and the U.S. Department of Education enforces Section 504 of The Rehabilitation Act of 1973 as well as Title II of the American with Disabilities Act of 1990 (ADA). The primary vehicle for OCR enforcement is through the process of complaint investigation and resolution.

The determinations of OCR, and to some extent case law, provide guidance to school districts on how to handle the two pronged legal requirements of Section 504 in the area of non-academic and extracurricular services and activities for students with disabilities. It is only through an awareness of OCR and court decisions that an educator can effectively discern the scope of their obligation to provide these opportunities "to the maximum extent appropriate," in a manner that affords "an equal opportunity."

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III. FAPE: The Regulatory Framework

34 CFR 104.33 requires that "a recipient [school district] that operates a public elementary or secondary education program shall provide a Free Appropriate Public Education to each qualified handicapped person who is in the recipient's [school district]'s jurisdiction, regardless of the nature or severity of the person's handicap." See 34 CFR 104.33(a).

A. Defining "FAPE"

Section 504 defines a "Free Appropriate Public Education" as "the provision of regular or special education and related aids and services that (I) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of Sections 104.34, 104.35 and 104.36."

As a starting point to our analysis, it is important to note that the definition of FAPE under Section 504 is broader than under the Individuals with Disabilities Education Act. While the IDEA defines FAPE to include the provision of special education and related services, the Section 504 definition includes the provision of regular or special education and related aids and services.

B. IDEA Compliance and Section 504

34 CFR 104.33(b)(2) provides "the implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act [IDEA] is one means of meeting the standard established in....the section." As a general premise, a district can assume that meeting its obligations under the IDEA to an identified child will constitute compliance with Section 504's "FAPE requirement.

C. Defining a "Free Education"

According to 34 CFR 104.33(c) the provision of a Free Education is the provision of educational and related services without cost to a handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents are guardian. It may consist either of the provision of free services, or if a recipient places a handicapped person in or refers such person to a program not operated by the recipient as its means of carrying out the requirements of this subpart of payment for the cost of the program. Funds available from any public or private agency may be used to meet the requirement of a free education. The free education requirement shall not be construed to relieve and insure or a similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.

D. The Least Restrictive Environment

34 CFR 104.34(a) provides that the district shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A district shall place a handicapped person in the regular educational environment operated by the district unless it is demonstrated by the district that the education of the person in a regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a district places a person in a setting other than the regular educational environment pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the person's home. The following terms warrant notice:

The implication of this section is that most Section 504 student accommodations will occur within the regular classroom.

E. Section 504, IDEIA and the ADA

In the recent case of Indiana Area Sch. Dist. v. H.H., the court permitted the parents to proceed with Section 504 and ADA claims against the district. The parents sought reimbursement under the IDEIA for their unilateral placement in a private school. The parents alleged that the district's failure to develop a BIP for a student with severe behavioral issues denied the student participation in and the benefit of his education in violation of Section 504 and the ADA. The court noted that the failure to provide FAPE is not "per se discrimination" under Section 504 or the ADA, however, there was no dispute that the child was prohibited from participating in or denied the benefits of school. The court left open the possibility that the parents could be awarded compensatory damages for pain and suffering. 45 IDELR 155 (W.D. Pa. 2006).

In contrast, in the case of H. v. Lemahieu, the court held that parents could not assert a Section 504 discrimination claim against their district. Parents had asserted that the district violated the IDEA by developing inappropriate IEPs and committing procedural violations; there were no allegations that the district had intentionally discriminated against their children. The court found that Section 504 is only available "to correct intentional discrimination within the framework of the IDEA." 44 IDELR 161 (D. Haw. 2005).

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IV. The Section 504 Accommodation Plan

The Section 504 Accommodation Plan is the tool whereby the district meets it obligation to provide FAPE to the qualified handicapped person. While there is no explicit requirement that a Section 504 Plan be documented in writing, the purpose of doing such is to provide a summary of accommodations that the student will need in order to have equal access to the learning process, as well as the district's other programs, activities and services.

If the goal of Section 504 is to provide equality and opportunity, then the hallmark of Section 504 is accommodation. The Section 504 Plan seeks to offer reasonable accommodations in order to provide equality and opportunity. Section 504 does not require that an educational institution lower its educational standards. But it does require an effort on the part of the district to accommodate the student's disability so they have access to the same level of education offered to the non-disabled student. An accommodation is no longer reasonable when it substantially or materially alters the program or constitutes an unreasonable burden on the district or child.

A. Accommodation Defined

"An accommodation is a change in the course, standard, test preparation, location, timing, scheduling, expectations, student response, and/or other attribute which provides access for a student with a disability to participate in a course, standard or test which does not fundamentally alter or lower the standard or expectation of the course, standard or test." See Guidelines for the Promotion and Retention of Special Education Students, California Dept. of Education, http://www.cde.ca.gov/sp/se/sr/promoretntn.asp, (8/23/2000).

Simply put, accommodations are "outside the body," that is, physical or environmental changes around the student. Teachers usually refer to accommodations as good teaching strategies.

See "To Accommodate, To Modify, and to Know the Difference: Determining Placement of a Child in Special Education or 504" Hayes, Nakonia, http://www.newhorizons.org/ spneeds/inclusion/law/hayes.htm (accessed May 25, 2006).

B. Modifications Defined

A modification is a change in the course, standard, test preparation, location, timing, scheduling, expectations, student response, and/or other attribute which provides access for a student with a disability to participate in a course, standard or test, which does fundamentally alter or lower the standard expectation of the course, standard or test. See "To Accommodate, To Modify, and to Know the Difference: Determining Placement of a Child in Special Education or 504," Hayes, Nakonia, available at http://www.newhorizons.org/spneeds/inclusion/law/hayes.htm (accessed May 24, 2006).

C. The Realm of Accommodation

Accommodation takes place in three areas. They are as follows:

Examples of accommodations include the following:

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V. Distinctions by Educational Level

The meaning of the phrase "qualified student with a disability" differs on the basis of a student's educational level. In addition, the nature of services to which a student is entitled under Section 504 differs by educational level as well.

A. The Elementary and Secondary Educational Level

At the elementary and secondary educational level, a "qualified student with a disability" is a student with a disability who is:

Elementary and secondary school districts are required to provide FAPE to qualified students with disabilities. As mentioned previously, this FAPE is defined as regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the students without disabilities are met.

B. The Post-Secondary Level

At the post-secondary educational level, a qualified student with a disability is a student with a disability who meets the academic and technical standards requisite for admission or participation in the institution's educational program or activity. The post-secondary institution is required to provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school's program. Post-secondary educational institutions are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient's program or impose an undue burden.

C. The Distinction Between Regular Education Intervention Plans and a Section 504 Plan

A regular education intervention plan is appropriate for the student without a disability. A student who is not suspected of having a disability may nevertheless qualify for a regular education intervention plan.

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VI. Invalid Reasons for a Section 504 Plan

There are any number of invalid reasons for placing a student on a Section 504 plan, including the following:

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VII. Implementing the 504 Plan

The implementation of the 504 plan is key to ensuring a student receives FAPE. The failure on the part of a district to implement its own plan will be construed as a denial of FAPE. For example, in the case of Arlington, Texas Independent School District, 31 IDELR 87 (February 9, 1999), a student with ADD was the subject of a Section 504 plan. The parents complained to the Office for Civil Rights that a classroom teacher had failed to implement the student's Section 504 plan because they did not provide all of the modifications described in the plan. The Office for Civil Rights ruled that the computer course teacher had failed to comply with the requirements of Section 504 because she did not provide all of the modifications in the 504 accommodation plan. The Office concluded the plan had not been properly implemented despite the teacher's testimony that she "accepted late assignments, gave the student special instructions, and extended deadlines beyond what was allowed for other students."

Districts also need to be careful that the Section 504 plan follows the child. In the case of Banning Unified School District, 40 IDELR 77 (OCR CA 2003), the district failed to ensure that its high school was informed that a student transitioning from middle school had a Section 504 plan. For several months the student was educated without his 504 plan. Section 504 requires that districts take measures to ensure that each school is made aware of a student's Section 504 plan in advance so that it can be promptly implemented. Failure to do such will be construed by OCR as a violation of Section 504 and a denial of FAPE.

A. The Enforcement Role of the Office for Civil Rights [OCR]

OCR, a component of the US Department of Education, enforces Section 504, as well as Title II of the Americans with Disabilities Act 1990 (ADA) which extends the prohibition against discrimination to the full range of state or local government services (including public schools), programs, or activities regardless of whether they receive any federal funding. The standards adopted by the ADA were designed not to restrict the rights or remedies available under 504. However, the Title II regulations applicable to Free and Appropriate Public Education issues do not provide greater protection than that available under the Section 504 regulations.

OCR becomes involved in disability issues within a school district when it receives complaints from parents, students or advocates. In addition, OCR provides technical assistance to school districts, parents and students on request. As a general rule, OCR does not review the result of an individual placement or other educational decisions, so long as the school district has complied with the procedural requirements of Section 504 relating to identification and location of students with disabilities, evaluation of those students and due process. It is rare that OCR will evaluate the contents of a Section 504 plan or an IEP in light of the fact that any disagreement can be resolved through a due process hearing.

OCR does examine the procedures by which school districts identify and evaluate students with disabilities and the procedural safeguards which those school districts provide students. OCR will also examine incidents in which students with disabilities are allegedly subjected to treatment which is different from the treatment to which similarly situated students without disabilities are subjected. For example, OCR will be concerned about the unwarranted exclusion of disabled students from educational programs and services.

OCR also investigates complaints of retaliation. A district is prohibited from intimidating, threatening, coercing or discriminating against any individual for the purpose of interfering with any right or privilege secured by Section 504.

B. OCR and Investigations of Retaliation

Parents have frequently complained that school personnel have taken adverse action against a student in response to a parent's decision to assert his or her rights under Section 504. This concept has become known as "retaliation" in the case law. While it would be a rare case for an educator to intentionally take adverse action against a student in retaliation for assertion of his or her legal rights, the focus is not simply the educator's intent, but rather, how the educator's action is perceived in hindsight. OCR has developed a five-part test to determine whether a district has engaged in prohibited retaliation. It may be useful for you to consider the steps of this test before taking action with respect to a student who is involved in due process proceedings or whose parents have filed a complaint with OCR.

The five questions you should consider are:

(1) Has the parent/student engaged in a protected activity?

(initiated due process proceedings, filed suit in court, filed a complaint with OCR)

(2) Is the district or its agents aware of the protected activity?

(how and when did district receive notice, is there a rumor or verified action)

(3) Will the adverse action against the student occur at the same time as, or after, the parent/student engaged in the protected activity?

(4) Will a neutral third-party decide there is a causal relationship or connection between the protected activity and the adverse action?

(5) Can the district offer legitimate, nondiscriminatory reasons for the adverse action, which a neutral third-party will not consider to be pretextual?

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VIII. Review and Evaluation

A Section 504 plan should be reviewed on an annual basis and if needed, more frequently. The primary purpose of the review is to add, subtract or modify student accommodations in response to any change in the student's disabling condition or their program.

Reevaluation should occur on a triennial basis. It is recommended that before a 504 plan be terminated, the 504 eligibility team should review the current student need and make an affirmative determination that the plan is no longer needed to provide the student equal access. If there is any question, the team should conduct an evaluation which is, at least, as thorough as the evaluation used for identifying Section 504 eligibility.

The fact that a student is receiving good grades will not always excuse implementing a Section 504 plan. Good grades, while one measure of the appropriateness of an accommodation are not always dispositive where the student has the potential to do substantially better with reasonable accommodations. In Livingston Township Board of Education, 40 IDELR 111 (SEA NJ 2003), a 16 year old student who had limited use of his arms and upper body was denied consistent note taking accommodations and CD versions of his text books. The district pointed to the student's B+ average, but the administrative law judge dismissed the B+ average as only one measure of the appropriateness of the student's 504 plan. This case points out the potential distinction between the "adequacy," standard in the IDEA and the "reasonable accommodation," standard in Section 504.

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IX. The Scope of a Plan

There is no preset scope for a 504 plan. For example, a student diagnosed with a medical condition may have a Section 504 plan which is no broader in scope than the student's medical protocol. The measuring stick for the scope of a plan is simply that amount of accommodation necessary to provide the student with equal opportunity and equal access.

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X. Assessment

Just as the IDEA and No Child Left Behind indicate that accommodations should be identified when implemented for state and district assessments, a Section 504 plan should also specify those accommodations necessary to enable the student participate in state or district-wide assessments. The educator should anticipate that if a student requires an accommodation for classroom testing, they will require the same accommodation for the state or district-wide assessment.

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XI. Practice Pointers

There are a number of practice pointers in the context of designing and implementing Section 504 plans. The following rules are worth noting:

1. All teachers must be involved in 504 plan implementation;

2. All teachers must understand the manner in which an accommodation is implemented in their classroom;

3. If a plan truly provides equal opportunity, then grading should not be an issue;

4. Accommodations should never substantially alter the program to the point where it does not constitute equal opportunity;

5. Section 504 plans should be designed with input from regular educators;

6. The Section 504 referral, evaluation and plan design process should be coordinated at the building level.

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XII. Inclusion in Extracurricular Activities and Non-Academic Programs

Section 504 does not explicitly mention athletics, extracurricular programs or other school sponsored non-academic activities. However, the language of Section 504 is unquestionably broad, providing that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her/his disability, be excluded from participation in, be denied the benefits, or be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. 794.

A. Participation to the "Maximum Extent Appropriate"

Pursuant to 34 CFR 104.34(b), when providing or arranging for the provision of non-academic services and activities; extracurricular services and activities; including meals; recess periods; and the services and activities set forth in 104.37(a)(2).

School are required to ensure that handicapped persons participate with non-handicapped persons in activities and services to the maximum extent appropriate to the needs of the handicapped person in question.

B. "Equal Opportunity for Participation"

34 CFR Section 104.37(a) articulates a general "equal opportunity," standard. It provides that a school "shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities." 34 CFR 104.37(a).

i. Defining "non-academic and extracurricular services and activities"

34 CFR 104.37(a)(2) contains examples of "non-academic and extracurricular services and activities," indicating that they may include:

ii. Regulation of "counseling services"

34 CFR 104.37(b) injects a non-discrimination standard into counseling services. It indicates that a school which provides personal counseling, academic counseling, vocational counseling, guidance counseling, or placement services shall provide the services without discrimination on the basis of handicap.

There is a specific requirement that the school shall ensure that qualified handicapped students are not counseled toward more restrict career objectives than are non-handicapped students with similar interests and abilities.

iii. Opportunity to access physical education and athletics

Pursuant to 34 CFR 104.37, when providing physical education courses, athletics, and similar aids, benefits or services, a school may not discriminate on the basis of handicap. Schools that offer physical education courses or operate or sponsor interscholastic clubs, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation.

iv. Separate or different programs

A school may offer physical education and athletic activities to handicapped students that are separate or different from those offered to non-handicapped students only if separation or differentiation is consistent with the requirements of 34 CFR 104.34 and only if no qualified handicapped student is denied the opportunity to compete for a team; or to participate in courses that are not separate or different.

C. Practical Application

Section 504 extends two legal principles to non-academic programming. The first principle is that a student with disabilities shall participate with non-disabled students in non-academic settings and extracurricular activities "to the maximum extent appropriate" to the needs of the students with disabilities. The second legal principle is that schools must provide non-academic and extracurricular services and activities in a way that allows students with disabilities an equal opportunity for participation in such services and activities. The regulations do not define the term "to the maximum extent appropriate" nor do they define "an equal opportunity." The definition of these two terms has been left to the courts.

D. Case Studies

A. Extracurricular Activities

1. Cheerleading

A mother filed a complaint with OCR alleging that the school district discriminated against her daughter on the basis of disability by failing to afford her an equal opportunity to participate in the tryouts for the cheerleading squad. The mother indicated that the school district had refused her request to videotape the cheerleading practice. Most likely the district's refusal had been based on the privacy interest of other students. Nevertheless, the district and the Office for Civil Rights (OCR) entered into a resolution agreement where the district agreed to take the following actions:

Practice Pointer: 34 CFR 104.37(a)(1) does not require that districts adopt a written policy with regard to equal opportunity for participation in non-academic and extracurricular services and activities. However, the effective result of this resolution was that the district was required to adopt a procedure to ensure that equal opportunity was afforded to students with disabilities. The other lesson from this resolution agreement is that districts, when faced with competing interests, such as privacy interests and access issues should seek in the first instance to broach a balanced compromise. OCR frequently uses the complaint resolution process, even if done through agreement, as an opportunity to see that district staff receive further training on Section 504. See Marion County School District (FL) 37 IDELR 13 (OCR 2001). For a similar result see Moses Lake School District No. 161, 36 IDELR 218 (OCR 2002).

2. Alcohol consumption at school events.

A student was disciplined for being under the influence of alcohol at a football game. OCR dispensed of the subsequent complaint noting that students without disabilities who committed the same offense were disciplined in the same manner. See El Paso Independent School District (TX) 35 IDELR 221 (OCR 2001).

Practice Pointer: Section 504 does not insulate students from disciplinary consequences when the discipline imposed does not constitute a change in placement. The review by OCR in such circumstances will be limited to whether or not the district acted in a non-discriminatory manner in disciplining the student.

B. Athletics

1. Dismissal for unexcused absences.

A parent filed a complaint with OCR alleging that the school district discriminated against her daughter on the basis of her disability (Bipolar Rapid Recycler Depression and ADHD) by not allowing her to participate on the high school volleyball team. The mother specifically alleged that the district did not follow her daughter's IEP amendment which called for participation in athletics until after the district filed an eligibility form for the student; that the district dismissed the student from the team for unexcused absences that were due to her disability and for unexcused absences that occurred during the time frame when she was ineligible for the team. The mother also alleged that her varsity volleyball coach retaliated against her because of a complaint that she had filed with the Alabama High School Athletic Association challenging its "no pass, no play" rule. Finally, she alleged that the coach made embarrassing remarks about her daughter to the team and inquired about her attendance at school when she had an excused absence approved through the school office.

OCR found that the state code pertaining to athletics dictates the decision regarding a student with a disability's participation in extracurricular activities and that all students who compete on an interscholastic sports team in Alabama must file an eligibility form five days prior to the competition. As to the unexcused absences, the OCR pointed to the fact that the team rules state that three unexcused absences from practices or meetings will result in dismissal from the team. OCR found that the team rule in regards to unexcused absences was applied uniformly and therefore, the district did not fail to provide the student with an equal opportunity for participation on the district's volleyball team and did not treat the student in a different manner than any other student in regards to this allegation.

The district treated the remarks by the coach as allegations of adverse action and engaged in the five step analysis as to whether or not the remarks were retaliatory in nature. In particular, the district inquired as follows:

OCR found that the filing of the complaint with the Athletic Association was a protected activity and that the district was aware of the complaint and thus, aware of the protected activity. The district concluded that the alleged adverse actions, to wit the remarks about the student, even if true, did not constitute adverse actions. The actions did not result in any denial of benefits to the student in that they did not result in the student being dismissed from the team.

Practice Pointer: The lesson from this case is that school districts remain free to uniformly exercise and impose team rules in the context of athletics. The key point the district needs to demonstrate is that the team rules are uniformly applied and that they do not result in treatment of the disabled student in a different manner than any other student. See Shelby County School District (AL) 37 IDELR 41 (OCR 2002).

Practice Pointer: Team rules, if applied uniformly, will generally not be deemed discriminatory. See Little Axe Public Schools (OK) 37 IDELR 103 (OCR 2002).

2. Participation and eligibility requirements.

A student was dismissed from the hockey team due to three unexcused absences from practice and missing a two game tour when he was prohibited from boarding a bus because he had not attended school on the day of the game. OCR affirmed the fact that uniform participation and eligibility requirements if uniformly applied, do not constitute a violation of 504. See Maine School Administrative District No. 1, 37 IDELR 160 (OCR 2002).

3. Attitude and teamwork requirements.

The high school basketball coach cut a student from the varsity baseball team on the final day of tryouts. The coach cited the student's attitude and teamwork skills as the reason for his decision to cut the student. The student's mother filed a complaint with OCR alleging that the district discriminated against her son on the basis of disability because her son was on the baseball team the previous year, was one of the best players on the team and his disciplinary record was no worse than some of the players who made the team. The district pointed to its extracurricular activities behavior code which governed student participation in any extracurricular activity. The code stated that "participation in these events at Kaneland is a privilege granted to students who can and do uphold the ideals of good citizenship, who abide by the rules and regulations of the school community and who commit themselves to academic success." Student participation in baseball was also governed by the baseball guidelines which established criteria necessary for participation in baseball. These criteria included attitude, ability, skills, teamwork and the ability to fit into the team's style and system. All students were provided a copy of those guidelines.

The district conceded that the student had the athletic ability and skills required to be a member of the team, but contended that he did not meet the other important criteria. For example, the student had a hot temper, a bad attitude and was not a team player. The coach denied the allegation that he student's disciplinary record was the factor in his decision to cut him from the team and further indicated that he was unaware at the time he made the decision to cut the student from the varsity team that the student had a disability or that he was a special education student. OCR specifically noted that the student's IEP did not preclude him from being subject to the same requirements for making the baseball team as other students. OCR observed that "He is subject to the district's established disciplinary policies and does not have a behavioral management plan that would preclude application of either the code or the guidelines." On that basis OCR determined the complaint to be unfounded.

Practice Pointer: The result might have been different if the student's IEP contained a behavioral management plan which was inconsistent with the district's athletic guidelines. This decision gives comfort to school districts that, absent IEP statements to the contrary, they may uniformly apply their team codes to students and that this uniform application may include behavioral considerations. See Kaneland Community Unit School District No. 302 (IL) 37 IDELR 287 (OCR 2002).

4. Club sports.

A disabled student was expelled from a school funded intramural hockey club. The student had a disability and a behavior management problem. The hockey club did not implement the behavior management program during his participation in the club sport. The Office for Civil Rights ruled that the district violated its obligation to ensure the ice hockey club to which it provided financial assistance complied with the requirements of Section 504 and the ADA. See Rosetree Media (PA) School District, 40 IDELR 188 (OCR2003).

C. Scholarships

1. Access to scholarship information.

Practice Pointer: It is important to remember that access and equal opportunity extend to guidance counseling services and post-secondary opportunity. Therefore, districts should review the manner in which they disseminate scholarship information in order to ensure that students with disabilities have equal access to this information. See Garden Grove Unified School District (CA) 37 IDELR 43 (OCR 2002).

D. Field Trips

1. Requiring parental attendance.

Practice Pointer: Section 504 clearly indicates that a student should not be excluded from attending a field trip on the basis of their disability. Asking the parent to attend a field trip as a precondition to their child's participation is usually viewed as imposing a potentially discriminatory condition. See Lucas Local Schools (OH) 37 IDELR 77 (OCR 2002); see also discussion below.

Practice Pointer: A district cannot make the parents' presence mandatory at a field trip when a similar obligation is not imposed upon the parents of non-disabled students. Doing such discriminates on the basis of disability in violation of Section 504. See Rim of the World Unified School District (CA) 38 IDELR 101 (OCR 2002). See also San Saba Independent School District (TX) 25 IDELR 755 (OCR 1996).

2. Limits on liability.

A complaint to OCR alleged that a school district discriminated on the basis of disability by revoking permission for their son to go on a school sponsored European trip. OCR concluded that the district had revoked permission because of concerns the student would violate trip rules rather than because of his ADHD. See Maine School Administrative District No. 1, 35 IDELR 166 (OCR 2001).

Practice Pointer: The district's liability for excluding a Section 504 student from a field trip is contingent upon not only a demonstration by the plaintiff of his exclusion from participation in services and that such treatment was by reason of disability, but that also the school officials showed gross misjudgment or bad faith. For a similar result see Miamisburg City Schools (OH) 36 IDELR 217 (OCR 2002). While a district may use the student's health or safety as a reason for not participating in a field trip, the district has the burden of demonstrating that the exclusion is essential to that child's health or safety. During the time period that the child does not participate in the field trip, the district has a duty to provide educational services.

Practice Pointer: A district can refute a charge of disability-based discrimination by demonstrating a legitimate non-discriminatory reason for its actions.

E. Playgrounds

Playgrounds must be fully accessible to students with disabilities. For example, the playground surfaces and access ways leading to the playground must be maneuverable by students in wheelchairs.

Practice Pointer: Districts need to be careful when confronted with volunteer playground construction efforts. These type of volunteer efforts can produce safety and access issues. A district should reference the Playground Standards promulgated by the United States Access Board. While these guidelines have not become law, they are considered advisory by OCR. See Shiloh Village School District (IL) 37 IDELR 188 (OCR 2002).

F. Physical Education Activities

A school may not discriminate on the basis of disability in providing physical education courses. If a school offers physical education courses it must provide an equal opportunity for participation in that course and must offer physical education to students with disabilities.

Practice Pointer: There is no specific requirement under Section 504 that a district provide services such as occupational or physical therapy services. However, such services may come into play as compensatory services for missed access or to compensate for lack of equal opportunity. See Franklin City Public Schools (VA), 38 IDELR 46 (OCR 2002).

1. Meeting physical education needs.

A parent complained to OCR that her child's 504 plan did not contain any provisions regarding physical education. The district entered into a resolution agreement indicating that the district will review and revise the student's 504 plan in order to ensure that her disability related needs are carefully considered and are appropriately addressed in the context of physical education courses and requirements. Apparently, the parent had also complained about the child's previous physical education teacher and made allegations of retaliation. The district indicated in the resolution agreement that should the district determine that a waiver of its physical education requirement is not appropriate, "The district will ensure that the student will have the opportunity to attend a physical education course taught by an instructor other than the student's former P.E. teacher." The district also agreed to educate the student's former P.E. teacher of Section 504 and its requirements including Section 504's Prohibitions Against Retaliation.

Practice Pointer: Written between the lines of this decision is the implication that not all educators and coaches are aware of Section 504's requirements. A school district should regularly hold document training sessions with regard to Section 504 in order to satisfy OCR that it's staff have been properly educated as to Section 504's requirements.

G. Graduation

Students with disabilities who meet graduation requirements should be allowed to attend or participate in the graduation ceremony. Failure to afford such an opportunity is usually considered a violation of Section 504.

Practice Pointer: Decisions to exclude a student from activities based on safety considerations must follow a process. In particular, the decisions must be based on current information and must be made by either an IEP team or a Section 504 team.

H. Choir and Band

As a general premise, students should have access to and equal opportunity to participate in choir and band programs. However, accessibility and equal opportunity may be limited by legitimate safety concerns and ability concerns. See Grosse Pointe Public Schools (MI) 35 IDELR 225 (OCR 2001). In addition, a student's lack of talent may be a legitimate non-discriminatory reason for his exclusion from the band. See Allegheny County (MD) Board of Education, 40 IDELR 220 (OCR 2003).

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XIII. Extended School Year Programming

Section 504 eligible students are entitled to the equal opportunity to access a school district's summer programming. A district may violate Section 504 if it fails to consider whether its Section 504 students are eligible for extended school year programming. See Boston (MA) Pub. Schs., 41 IDELR 137 (OCRI Boston 2003).

Section 504 requires that students with disabilities are given an equal opportunity for participation in the non-academic services of a district. There are, however, limits on this access. For example, when teachers attempt to intervene to redirect a student's misbehavior, and they are unable to accommodate the behavior without fundamentally altering the summer program, his/her participation in the program may limited. See Saint Paul Pub. Schs., 41 IDELR 37 (OCR Minn. 2003).

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XIV. Procedural Safeguards Under Section 504

There are a number of procedural safeguards available to individuals protected by Section 504.

A. The Written Assurance of Non-Discrimination

34 CFR 104.5(a) requires that school districts provide the federal government with written assurance of non-discrimination and compliance with Section 504. Districts have been providing the government with this assurance since 1977.

B. Designated Section 504 Coordinator

34 CFR 104.7(a) requires that each school district designate a Section 504 coordinator. This individual is defined as the person responsible for coordinating the district's 504 efforts. Districts may designate more than one person as a Section 504 coordinator. Therefore, most school districts adopt building level coordinators, as well as an overall supervisory coordinator.

C. Grievance Procedures

34 CFR 104.7(b) requires that districts adopt grievance procedures to resolve complaints of discrimination. A sample grievance procedure is attached as Appendix A.

D. Notice

34 CFR 104.8 requires the district to provide notice to students, parents, employees, unions and professional organizations of non-discrimination in admission or access to or treatment or employment in its programs or activities. The notice must also specify the reasonable employee designated to coordinate compliance. It is prudent for every school district to have a 504 policy statement and the 504 policy statement is an appropriate location for identifying the designated coordinator.

E. Annual Identification and Location

34 CFR 104.32(a) requires that districts annually identify and locate all Section 504 qualified children with disabilities in their geographic area who are not receiving a public education. This requirement is akin to the IDEIA's Child Find requirement.

F. Annual Notification

34 CFR 104.32(b) requires that districts annual notify persons with disabilities or their parents or guardians of the districts' responsibilities under Section 504. A sample notice entitled "Parent/Student Rights and Identification Evaluation and Placement is attached as Appendix B.

G. Consent

OCR has interpreted Section 504 to require districts to obtain parental permission for initial evaluations. Section 504 is silent on the form of parental consent required. Best practices warrant that the consent be in writing.

H. Procedural Safeguards Notice

Districts are required to provide parents or guardians with procedural safeguards giving them notice of their various rights under Section 504. There are several times during the planning process when parents/guardians should be provided their rights under Section 504. Those instances include:

Notification should include the following rights under Section 504:

Section 504 regulations do not:

There is no mediation requirement under Section 504, nor is there a requirement for a resolution session.

I. General Rights

Persons disagreeing with the identification, evaluation and placement of their children have several options available to them. Those options include the following:

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XV. Discipline

Pursuant to 34 CFR 104.4(b), discrimination occurs when a school district denies a student with a disability the opportunity to participate in or benefit from an aid, benefit or service which is afforded non-disabled students. Examples of discriminatory conduct in the area of behavior or discipline include the following:

A. The Ten (10) Day Rule.

As a general rule, a school district may not expel a student with a disability or suspend the student for more than ten (10) cumulative days during the school year for conduct related to the student's disability.

B. The Discipline of Section 504 Students

Under Section 504 a suspension or disciplinary removal of a student with a disability for more than ten (10) days may not be imposed without a determination that the student's misconduct is not a manifestation of his/her disability. See OCR Response to Williams, 21 IDELR 73 (OCR 1994). If the student's misconduct is related to the disability, the student may not be suspended for more than ten (10) days. If the misconduct is not related to the disability, the school district may impose normal disciplinary measures, subject to the parents' right to request an impartial hearing.

i. The Section 504 Manifestation Determination

The manifestation determination is made by convening a meeting of the 504 team to determine if the conduct was related to the disability. If the team decides that the conduct was related to the disability the district cannot expel the child and the team will need to consider alternate service and placement options. If the team determines that the conduct was unrelated to the disability, the district may proceed with long term suspension/expulsion of the child. Before this takes place the parent must be informed of their rights, including their right to request a hearing as to whether the manifestation determination was correct. This hearing process occurs under the Section 504 due process hearing requirements, and is not an IDEIA due process hearing.

ii. Cumulative Suspensions

OCR has opined that "[t]he permanent exclusion of a child with a handicap or exclusion for an indefinite period, or for more than ten (10) consecutive school days constitutes a significant change in placement' under Section 504. See OCR Memorandum re: Discipline of Students with Disabilities (OCR April 18, 1991). However, a series of suspensions that, in the aggregate, are for ten (10) days or less during the school year do not constitute a significant change in placement. Id.

A series of suspensions that are each of ten (10) days or fewer in duration that create a pattern of exclusions may be deemed under Section 504 to constitute a significant change in placement.' The determination of whether a series of suspensions creates a pattern is made on a case-by-case basis. However, OCR has opined that serial exclusions may never be used to avoid the requirements of re-evaluation before suspensions of more than ten (10) days.

OCR has identified the following factors to be used when determining whether a series of suspensions has resulted in a significant change in placement: The length of each suspension; the proximity of the suspensions to one another; and the total amount of time the child is excluded from school.

iii. The Re-Evaluation Process

Before implementing a suspension or expulsion that constitutes a significant change in the placement of a student with a disability, the district must conduct a re-evaluation of the student to determine if the misconduct in question is caused by the student's handicapping condition or if the student's current educational placement is appropriate.

1. Step One: Appropriateness of the Current Educational Placement

The individuals making the manifestation determination must first determine whether the current educational placement is appropriate. When making this decision, the team must determine whether the accommodations in the 504 plan are appropriate as they relate to the current misconduct. The team must then determine whether the accommodations were in place at the time of the alleged infraction. If the consensus is that the plan is not appropriate as it relates to the current misconduct or that it was not substantially complied with, then the suspension/expulsion proceeding should cease and the team should review and update the current plan.

If the team determines that the plan is appropriate and in place, then it must consider whether the misconduct is the result of the student's disability.

2. Step Two: Is the Misconduct Caused by the Child's Handicapping Condition?

The district must then determine whether the misconduct is caused by the child's handicapping condition. OCR has opined that this determination may be made by the same group of individuals who made the initial placement decision under Section 504. The group must have available to it information that "competent professionals would require, such as: psychological evaluation data related to behavior; and relevant information current enough to understand the child's current behavior."

OCR is of the opinion that the "determination may not be made by the individuals responsible for the school's disciplinary procedures such as the school principal or school board officials, who may lack the necessary expertise and personal knowledge about the child to make such a determination. These individuals, however, may participate as members of the placement decision group.

If the misconduct is not caused by the child's handicap, the child may be excluded from school in the same manner as similarly situated non-handicapped children are excluded.

If the misconduct is caused by the handicapping condition, the evaluation team must continue the evaluation under the requirements of Section 504 for re-evaluation and placement, to determine whether the child's current educational placement is appropriate. The team should also consider what behavioral accommodations may be appropriate.

3. Step Three: Procedural Safeguards

If there is a significant change in placement, then the parents' procedural safeguards under Section 504 are triggered. These requirements include the opportunity for substantive due process, which includes, at a minimum, the following: appropriate notice to parents, opportunity for the examination of records; an impartial hearing; opportunity for legal counsel and review procedures.

Parents should be informed of their rights and should be afforded a hearing if they disagree with the determination regarding the relationship of the behavior to the handicap or with regard to the subsequent placement proposal made by the team whether the behavior is determined to be caused by the handicap.

C. Drugs and Alcohol The "current user" distinction

Under the ADA, an individual who is currently engaged in the illegal use of drugs is not a handicapped individual under Section 504. However, a person who is addicted to drugs who is not a current user may be handicapped and entitled to all of the rights under Section 504. Similarly, a person erroneously regarded as engaged in the illegal use of drugs may also be regarded as handicapped under Section 504.

OCR has observed that "because alcohol and illegal drug users are not protected by Section 504, school districts may take disciplinary action regarding the use or possession of illegal drugs or alcohol against any student with handicaps who currently is engaged in the illegal use of drugs or in the use of alcohol to the same extent that disciplinary action is taken against non-handicapped persons for the same behavior. Furthermore, the local due process protections do not apply to disciplinary actions regarding the use or possession of illegal drugs or alcohol by students with handicaps who are currently engaged in the illegal use of drugs or in the use of alcohol."

A child who has a handicapping condition other than alcoholism or drug addition and who is not engaged in the illegal use of drugs or the use of alcohol, receives the protection of Section 504, even when in the possession of illegal drugs or alcohol. OCR has observed, "For example, if a mentally retarded child who does not use drugs or alcohol is found in possession of drugs or alcohol, the school district would be required to determine whether this misbehavior resulted from the child's handicapping condition."

D. Dangerous Students

OCR has stated that "[w]here a child presents an immediate threat to the safety of others, officials may promptly adjust the placement or suspend the child for up to ten (10) school days in accordance with rules that are applied even handedly to all children." However, unlike the IDEIA, Section 504 does not contain a dangerousness exception.

E. Alternative Discipline

"Occasional detentions and similar forms of discipline do not require re-evaluation or determination of the cause of the misconduct under Section 504. Generally detentions would not constitute a significant change in placement, particularly if they occur before or after instructional hours. If, however, a pattern of disciplinary actions for behaviors caused by, or symptomatic of, the child's disability develops, there might be sufficient cause to believe that a Section 504 violation is occurring." See OCR Response to Williams, 21 IDELR 73 (OCR 1994).

F. 45 Day Rule Drugs, Weapons and Serious Bodily Injury

Although OCR has not yet weighed in on the issue, the forty-five (45) day rule which applies to drugs, weapons and serious bodily injury under the IDEIA should be available to districts under Section 504.

G. Cessation of Educational Services

The Department of Education has interpreted the non-discrimination provisions of Section 504 to permit school districts to cease educational services during periods of disciplinary exclusion from school where that exclusion is for misconduct that was not a manifestation of the student's disability, and non-disabled students in similar circumstances do not receive educational services.

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Notes