Discussion of Section 504, the ADA, and the IDEA(Section 504 and ADA:

Section 504 is a civil rights law. The purpose of Section 504 is to protect individuals with disabilities from discrimination for reasons related to their disabilities. ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law.

Unlike IDEA, Section 504 and ADA do not ensure that a child with a disability will receive an individualized educational program that is designed to meet the child's unique needs and provide the child with educational benefit, so the child will be prepared for "for employment and independent living."

Eligibility

The child who has a disability or impairment does not automatically qualify for special education services under the IDEA. If the child has a disability but does not need special education services, the child will not qualify for special education and related services under the IDEA but may receive protections under Section 504 of the Rehabilitation Act.

To be eligible for protections under Section 504, the child must have a physical or mental impairment. This impairment must substantially limit at least one major life activity. Major life activities include walking, seeing, hearing, speaking, breathing, learning, reading, writing, performing math calculations, working, caring for oneself, and performing manual tasks. The key is whether the child has an "impairment" that "substantially limits . . . one or more . . . major life activities."

Section 504 requires an evaluation that draws information from a variety of sources. Section 504 does not require a meeting before a change in placement.

Confusion about Benefits and Rights

Some parents and educators believe that under IDEA, the child must be placed in special education classes but that if the child has a 504 plan, the child may remain in the regular classroom. For these reasons, parents often assume that Section 504 is more desirable. This is incorrect. "Special education" under IDEA is not a place or placement.

The child who receives Section 504 protections has fewer rights than the child who receives special education services under the IDEA. The child who receives special education services under the IDEA is automatically protected under Section 504.

Protection from Discrimination

Section 504 protects children with disabilities from discrimination. It is important to understand that if your child does not receive special education services under IDEA, your child does not have the procedural protections that are available under the IDEA statute.

Accommodations and Modifications

Under Section 504, the child with a disability may receive accommodations and modifications that are not available to children who are not disabled. These accommodations and modifications are also available under IDEA.

Access v. Educational Benefit

Change the facts to clarify the differences between these two laws. Assume that your special needs child is in a wheel chair. Under Section 504, your child shall not be discriminated against because of the disability. Your child shall be provided with access to an education, to and through the schoolhouse door. Modifications may be made to the building and other accommodations may be made for your child.

Under Section 504 regulations, a free appropriate public education is defined as "the provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met and . . . are based upon adherence to specified procedures." (34 C.F.R.§ 104.33(b)(1))

Now assume that your child in a wheelchair also has neurological problems that adversely affect the child's ability to learn. Under the IDEA, if your child has a disability that adversely affects educational performance, your child is entitled to an education that is designed to meet the child's unique needs and from which your child receives educational benefit. Section 504 includes no guarantee that your wheelchair-bound child will receive an education from which your child receives educational benefit. Your Section 504 child has access to the same free appropriate public education that is available to children who are not disabled.

Discipline

If the Section 504 child misbehaves and the school decides the child's behavior is not a manifestation of the disability, the child can be expelled from school permanently. The IDEA child has the right to FAPE, even if expelled from school. Section 504 and ADA do not provide these protections.

Procedural Safeguards

Section 504 does not include a clearly established "Prior Written Notice" requirement. In contrast, IDEA includes an elaborate system of procedural safeguards designed to protect the child and parents. These safeguards include written notice before any change of placement and the right to an independent educational evaluation at public expense. Section 504 does not include these protections.

Impartial Hearings

Section 504 and IDEA require school districts to conduct impartial hearings for parents who disagree with identification, evaluation, or placement. Under Section 504, the parent has an opportunity to participate and obtain representation by counsel, but other details are left to the discretion of the school district.

NOTE: Section 504 of the Rehabilitation Act is in Wrightslaw: Special Education Law, 2nd Edition , pages 291 to 298.

Summary

In this article, you learned that Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are responsible for accommodations and modifications in testing situations and programs, and improved building accessibility. You learned that these statutes do not require public schools to provide an educational program that is individualized to meet the unique needs of a child with the goal of enabling the child to become independent and self- sufficient. You learned that the child with a Section 504 plan does not have the protections available to the child who has an IEP under the IDEA.