There are several benefits of your child qualifying for special education or related services under the regulations for Section 504 of the Rehabilitation Act of 1973. See 34 C.F.R. 104.30-37. It is easier to become eligible under Section 504 than the Individuals with Disabilities Education Act (IDEA), as amended. First, a student only has to show that he or she has a disability (this definition is very broad under Section 504 and the ADA), has a substantial physical or mental limitation to a major life activity (there is a lengthy list of what are substantial limitations to major life activities), and is otherwise qualified with or without accommodations for the activity, program or services. The student does not have to show that his or her disability adversely affects their education performance and that they are in need of special education and related services which is required under the IDEA to become eligible for services. When a student meets this criteria, then he or she is protected from discrimination by the school system because of that disability. The student is also entitled to reasonable accommodations so that he or she has access or equal opportunity to participate in activities, programs and services of the school system. For example, a student may have a physical impairment that substantially limits his ability to climb stairs or walk distances from one class to another. In this case, the school system must make reasonable accommodations for the student to climb stairs by allowing the student to use an elevator if one is available or perhaps switching classes so that he can attend ones without climbing stairs. A student that has mild ADHD might not qualify for special education and related services under the IDEA, but would qualify for reasonable accommodations under Section 504. A student who attends a private day care after school program is protected under the Americans with Disabilities Act from discrimination. Thus, a student who has behavior problems cannot be terminated from a private after school program because of his disabilities unless he is an imminent physical threat to the health and safety of himself or others or his accommodation to attend the program would present a substantial financial hardship or material alteration to the program.
I have the term Section 504 and ADA somewhat interchangeably. The truth is that these laws are similar but they are not the same. For example, a student can receive a Section 504 accommodations plan under Section 504 but not the ADA. A student can challenge discrimination by a private day care program under the ADA but not Section 504. Under Title III of the ADA, a student can challenge disability discrimination by private entities, programs and activities such as private day care. You cannot challenge a denial of services in a private program or activity under Section 504. That program or activity must receive federal financial assistance to be covered under Section 504. Also, there is easier burden to show discrimination under the ADA: you only have to show that you were discriminated because of your disability. Thus there may be mixed reasons for the discrimination but if you can show that one of the primary reasons is disability discrimination then you have a meritorious claim. On the other hand if you are pursing disability discrimination under Section 504 you must show that you were discriminated against solely because of your disability.
There are many more differences between Section 504 and the ADA. Instead of trying to give you examples of every possible use of Section 504 and the ADA, I will give you a legal analysis of these laws below for your review. If you have questions about the use of Section 504 and the ADA and how these laws can be used to advocate for your child and his or her rights, then it is best to contact an attorney that concentrates in these areas of the laws.
Title II of Americans with Disabilities Act
Qualified Individual with a Disability as defined by the ADA
To establish a violation of Title II of the Americans with Disabilities Act (ADA), an individual must establish that she is: (1) a “qualified individual” with a disability;[1] (2) individual is subject to the ADA; and (3) that individual is denied the opportunity to participate in or benefit from the school system’s services, programs, or activities, or were otherwise discriminated against by the school system, by reason of that individual’s disabilities. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1081 (11th Cir. 2007), reh. en banc den., 2009 U.S. App. LEXIS 28890 (2009), cert den., 130 S.Ct. 1139, 175 (2010); Shotz v. Cates, 256 F.3d 1077,1079 (11th Cir. 2001).
A “qualified individual with a disability” as defined by the ADA means
an individual with a disability who, with or without reasonable accommodations to rules, policies, or practices, the removal of architectural, communication , or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. § 12131(2).
The ADA prohibits discrimination against “individuals with disabilities.” The term “disability” means, with respect to an individual- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 20 U.S.C. § 12102.
The ADA Amendments of 2008 define a “major life activities” as codified under 42 U.S.C. § 12102(2)(A) as follows: “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” For the purpose of this section, “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The definition also protects individuals with impaired bodily functions even if one or more of the major life activities identified in the ADA are not substantially limited. 42 U.S.C. § 12102(2)(B).
The ADA Amendments add an explanation of the phrase “regarded as having impairment.” 20 U.S.C. § 12102(3)(c). An individual “regarded as having such impairment” means:
An individual meets the requirements of “being regarded as having such an impairment” if the individual establishes that she or she has been subject to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment is perceived to limit a major life activity.
Paragraph 1 (c) shall not apply to impairments that are transitory and minor. A transitory impairment is impairment with an actual or expected duration of 6 months or less.”
The ADA Amendments add expansive rules of construction regarding the definition of disability.[2] This Amendment is codified at 42 U.S.C. § 12102(4) and states:
“(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of the Act.
(B) The term “substantially limits” shall be interpreted consistently with the findings and purpose of the ADA Amendments Act of 2004.
(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
(E)(I) The determination of whether impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as –
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids, and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment or supplies;
(II) the use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether impairment substantially limits a major life activity.
(iii) As used in this subparagraph –
(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and
(II) the term “low vision devices” means devices that magnify, enhance, or otherwise augment a visual image.”
A condition does not have to be permanent to qualify as a disability under the ADA. Patterson v. Downtown Med. Ctr., 866 F. Supp. 1379, 1381 (M.D. Fla. 1994). For example, an individual’s diagnosis of Celiac Disease is a life time illness and disorder. But impairment, whether it is temporary or permanent, standing alone is not necessarily a disability under the ADA. Impairment must substantially limit one or more the individual’s major life activities. Gordon v. E.L. Hamm & Assoc., 100 F.3d 907, 910 (11th Cir. 1996), cert. denied, 522 U.S. 1030 (1997).
School System is a Public Entity
A public entity is subject to Title II of the ADA. A “public entity” means- (1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government. 28 C.F.R. § 104(5) (1),(2). The Forsyth County School System is a public entity under the ADA.
Discrimination As Result of Individual’s Disabilities[3]
The ADA’s regulations promulgated by the Department of Justice prohibit “discrimination” in relevant part:
A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangement, on the basis of disability – (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are effective as those provided to others; . . . (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. 28 C.F.R. § 35.130(b)(1)(2009). This means that the public entity is prohibited from affording to individuals with disabilities services that “are not equal to that afforded others,” id., § 35.130(b)(1)(ii), or “not as effective in affording equal opportunity,” id., § 35.130(b)(1)(iii), but also the public entity cannot prevent an individual with a disability from enjoying “any aid, benefit, or service,” id., § 35. 130(b)(1)(i), regardless of whether other individuals are granted access. Henrietta D., 331 F.3d at 274. See Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362, 1374 (N.D. Ga. 2002)(Title II of the ADA and Section 504 broadly define discrimination as (1) the exclusive from participation in the services, programs, or activities of a public entity because of a disability; (2) the denial of the benefits of the services, programs, or activities of any public entity). “A public entity must operate each service, program, or activity so that the service, program, or activity, when viewed its entirety, is readily accessible to and useable by individuals with disabilities.” 28 C.F.R. 35.150.
In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities. 28 C.F.R. § 35.160(b)(2). Title II of the ADA requires that a public entity’s program must be accessible. 28 C.F.R. § 35.150(a)(1)(2004). A public entity must make reasonable modifications that are necessary to ensure that its programs are accessible unless the modification fundamentally would alter the nature of the program or would be unduly burdensome to the public entity. 28 C.F.R. § 35.150(a)(3). Anderson v. Department of Public Health, 1 F. Supp.2d 456, 463 (E.D. Pa. 1998).
Entity Must Make Reasonable Modifications To Avoid Discrimination On The Basis Of Disabilities.
The ADA requires that a public entity make reasonable modifications[4] to avoid discrimination against an individual with disabilities on the basis of their disabilities unless those modifications would entail a fundamental alteration of its program or activity. Specifically, the ADA provides:
“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
A “reasonable accommodation” is one that gives the otherwise qualified individual with disabilities “meaningful access” to the program or services sought. Alexander v. Choate, 469 U.S. at 301. There are a countless number of ways to make reasonable accommodations for individuals with disabilities in regard to the activities, programs, facilities, and services of public entities and places of public accommodation. A few examples of reasonable accommodations may include, for example, the following:
installing a ramp at the entrance of a building; reserving parking spaces close to a building so that individuals using a wheelchair can get in and out of a vehicle to access the building;
- making restrooms, including toilet stalls, sinks, and towel racks accessible
- making a water fountain accessible by installing a cup dispenser;
- using flashing lights when alarm bells are used to alert to a person with a vision impairment to emergencies;
- using large print in order that individuals with sight impairments can read signs,
- pamphlets, and other material;
- providing an individual with a visual impairment with assistance to fill out a job application;
- providing an employee with a mental disability who must visit a psychiatrist twice a week the opportunity to take longer lunch breaks and make up the time by working later on those days. and
- the acquisition or modification of equipment or the provision of qualified readers or interpreters.
In considering what is a reasonable accommodation in different contexts, the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581, 606 n. 16 (1999) noted that,
“the undue hardship inquiry requires not simply an assessment of the cost of the accommodation in relation to the recipient’s overall budget, but a case-by-case analysis weighing factors that include: (1) the overall size of the recipient’s program with respect to number of employees, number and type of facilities; and size of budget; (2) the type of the recipient’s operation, including the composition and structure of the recipient’s workforce; and (3) the nature and cost of the accommodation needed.”
Section 504 of the Rehabilitation Act of 1973
Individual with a Disability under Section 504
Section 504 of the Rehabilitation Act provides, in pertinent part, that:
No otherwise qualified individual with disabilities in the United States . . . shall, solely by reason of his disability, be excluded from participation in, or be denied the benefit of, or be subject to discrimination under any program or activity receiving federal financial assistance. . . . [5]
Section 504 and its implementing regulations apply to all preschool, elementary, and secondary education programs that receive federal financial assistance. These federal regulations prohibit discrimination against individuals with disabilities and require school districts to take affirmative steps to insure that all children with disabilities receive a free appropriate public education.[6]
For an individual filing a lawsuit under Section 504, it must be shown that the individual is: (1) an “individual with disabilities,“ (2) “otherwise qualified” to participate in the program or activity at issue; (3) was excluded from the program or activity solely by reason of the disability; and (4) the program or activity is a recipient of federal financial assistance. 29 U.S.C. § 794; Southeastern Community College v. Davis, 442 U.S. 397, 405-406 (1979)(Section 504 requires that the person with a disability must meet all the program requirements in spite of the disability); Hendricks v. Gilhool, 709 F.Supp. 1362, 1366 (E.D.Pa. 1989)(Section 504 does not furnish a basis for affirmative relief for the disabled). Nonetheless, Section 504 prohibits recipients from furnishing to individuals with disabilities facilities and services that are objectively inferior to those provided to nondisabled peers. Hendricks, 709 F.Supp. at 1366.
Under Section 504, the definition of an “individual with disabilities” is broad and includes an individual who . . . (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment A physical impairment or mental impairment may be a physiological disorder, condition, cosmetic disfigurement or anatomical loss effecting various body systems, or any mental or psychological disorder.[7] Major life activities include caring for one’s self, performing manual tasks, senses, speaking, walking, breathing, learning and working.[8] A record of impairment is a person’s history as having such impairment.[9] A person is regarded as having impairment if the impairment does not substantially limit a major life activity but the recipient of federal financial assistance treats the impairment as a limitation or it is perceived as a limitation because of the attitude of others toward the impairment.[10]
Otherwise Qualified Individual under Section 504
An “otherwise qualified individual with a disability” means someone who meets all the essential requirements of the activity or program.[11] For a child with a disability, this means that the child must meet the residency and age requirements established by state standards. An “otherwise qualified” child with disabilities must: (1) be of an age during which non-disabled children are provided with such services; or (2) be of an age which it is mandatory under state law to provide special education to eligible children, or (3) be someone that must be provided with special education under the IDEA.[12]
School System Receives Federal Financial Assistance[13]
Federal financial assistance means any grant, loan, contract . . . or any other arrangement by which the United States Department of Education provides or makes available assistance in the form of funds, services, and real or personal property.[14] School districts are recipients of federally financial assistance because they receive federal funds from the United States Department of Education under the No Child Left Behind (NCLB) Act, the Individuals with Disabilities Education Act (IDEA), and other federal education programs.
Discriminated Against Individual Solely Because of Disability.
As required under Section 504, an individual with a disability cannot be deprived of the “meaningful access to the benefit that the [school system] grantee offers.” Alexander v. Choate, 469 U.S. 287, 300-301 (1985)(“an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers . . . To assure meaningful access, reasonable accommodation in the grantee’s program or benefit may have to be made.”).[15]
Section 504 does not merely prohibit the denial of access to a free appropriate public education, but also gives a child with a disability equal opportunity to benefit from such programs. In some cases, special treatment or additional services may be necessary for the child with disabilities to fully enjoy the benefits of his education, and mere access to an education may be insufficient. David H., 569 F. Supp. at 1333. See also, Georgia Ass’n. of Retarded Citizens v. McDaniel, 511 F. Supp. 1263 (N.D.Ga. 1981) (cits. omitted)(Section 504 required more than the standard 180-day instructional period for students with disabilities).
[1] Title II of the ADA provides, in part, that . . . “no qualified individual with a disability, shall by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “public entity” means any state or local government; any department, agency . . . or other instrumentality of a State or States or local government. . . .” 42 U.S.C. § 12131(1). An individual with a disability, who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in a program or activities provided by a public agency.” 42 U.S.C. § 12131(2). The term “physical impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting enumerated body systems such as the neurological, musculoskeletal, respiratory and reproductive systems. 28 C.F.R. § 35.104(4)(1)(A). The term “mental impairment” means as any mental or psychological disorder such as mental retardation, learning disabilities, and emotional and mental illnesses. 28 C.F.R. § 35.104(4)(1)(B). The ADA regulations – found at 28 C.F.R. § 36.104 – define an impairment as any psychological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs (including speech organs that are not respiratory, such as vocal cords, soft palate and tongue); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.
[2] The effect of the ADA Amendments of 2008 caused the federal agencies responsible for implementing the ADA to change, revise, and amend their regulations. See e.g., 28 C.F.R. Part 35, App. A at p. 520 (2004)(The ADA defines major life activities as activities which an average person in the general population can perform with little or no difficulty such as caring for oneself, walking, seeing, hearing, speaking, breathing, learning, sitting, lifting, standing, and working.). .
[3] Section 504 provides in pertinent part that “[n]o otherwise qualified individual with handicap . . . shall, solely by reason of her or his handicap. . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination . . . .” 29 U.S.C. § 794(a). Section 504 requires that the Plaintiff must show the public entity discriminated against them solely by reason of their handicap. The difference between Section 504 and the ADA in this respect is that the ADA requires that a complainant shows the public entity discriminated against her by reason of her disabilities.
[4] “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). This regulation means “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 450. This is commonly referred to as the integration mandate of Title II of the ADA.
[5] 29 U.S.C. § 794(a). The scope of nondiscrimination requirement is broad and includes social services, health care, transportation, facilities, and education.
[6] Section 504 regulations can be found at 34 C.F.R. Part 104
[7] 34 C.F.R. § 104.3(j)(2)(i).
[8] 34 C.F.R. § 104.3(2)(ii).
[9] 34 C.F.R. § 104.3(j)(2)(iii).
[10] 34 C.F.R. § 104.3(j)(2)(iv).
[11] Section 504 of the Rehabilitation Act of 1973 provides in pertinent part that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794. The term “program or activity” means all operations of a department, agency . . . or other instrumentality of a State or of a local government. 29 U.S.C. § 794(b)(1)A). The same standards govern discrimination claims under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Allmond v. AKAL Security, Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009).
[12] 34 C.F.R. § 104.3(k)(2).
[13] Congress added a provision to Section 504 which defines a program or activity as extending to all the operations of the recipient. 29 U.S.C.§ 794(b)(1996). If discrimination occurs anywhere within a school district accepting federal funds, all federal funds can be withdrawn and not just only from those arising from the activity or program in which the discrimination occurred. Sperry, David J., Daniel, Phillip T.K., Huefner, Dixie S., & Gee, Gordon E. Education Law and the Public Schools: A Compendium (2d ed. 1997), at p. 955.
[14] 34 C.F.R. § 104.3(h). Federally funded programs, for example, would apply to all school districts that receive federal funds under the No Child Left Behind (NCLB) Act, the Individuals with Disabilities Education Act (IDEA), and as well other federal programs.
[15] Under Section 504 regulations, “a recipient shall make reasonable accommodations to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 28 C.F.R. § 41.53(2009).
