EDS 513: Legal Issues in Special Education

1. EDS 513: Legal Issues in Special Education Section 504 of the Rehabilitation Act of 1973 Kristina Krampe, 2005

2. Introduction Prior to beginning this presentation, you should have read Chapter 6 of Yell’s (2006)The Law and Special Education, 2nd Edition Upon completion of this presentation, you should be able to summarize the implications of Section 504 for students with disabilities

3. Purpose of Section 504 Basic purpose is to prohibit discrimination against persons with disabilities in programs that receive federal financial assistance “No otherwise qualified individuals with disabilities in the United States ....shall solely by reason of his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

4. Protection Under Section 504 Persons covered under Section 504 • Anyone who has a physical or mental impairment which substantially limits one or more major life activities • Anyone who has a record of such an impairment • Anyone who is regarded as having such an impairment

5. Physical and Mental Impairments Physical Impairments • Psychological disorder or condition • Cosmetic disfigurement • Anatomical loss Mental Impairments • Mental retardation • Organic brain syndrome • Emotional or mental illness • Specific learning disabilities

6. Relevant Cases E.E. Black Ltd. v. Marshall (1980) • Expanded the definition of impairment • Any condition which weakens, diminishes, restricts or otherwise damages an individual’s health or physical or mental activity • Asthma, deafness, blindness, diabetes, cerebral palsy • Tourette’s syndrome, multiple sclerosis, epilepsy • Chronic fatigue syndrome, AD/HD, kidney disease

7. Relevant Cases Daley v. Koch (1986) • If a person has not been diagnosed as having a psychological illness or disorder, he or she does not have a disability under Section 504 • Exclusion of persons affected by the illegal use or possession of drugs or alcohol and persons who have sexual behavior disorders, pyromania, kleptomania, etc.

8. Major Life Activity A major life activity includes • Self care • Performing manual tasks • Walking • Seeing • Hearing • Breathing • Learning • Working

9. Defining Substantial Limitation Unable to perform a major activity that an average person could perform OR Significantly restricted in the manner or duration of performance of major life activity when compared to an average person

10. Determining Substantial Limitation Factors to consider • What is the nature and severity of the impairment? • What is the duration or expected duration of the impairment? • What permanent or long-lasting effect results from the impairment?

11. Protection Under Section 504 All students with disabilities are protected from discrimination in elementary, secondary, and postsecondary schools • Equal opportunity to benefits from education as students without disabilities • Equivalent, not identical, services or programs must be provided • Reasonable accommodations

12. Protection from Discrimination School programs must be accessible to students with disabilities • Not all parts of school must be accessible • May not result in segregation of students with disabilities in one setting • Applies to all facilities within a school • Classrooms, gyms, water fountains, restrooms • Facilities for students with disabilities must be comparable to general education facilities

13. Protection from Discrimination Architectural accessibility Program accessibility Provision of related services Participation in extracurricular and nonacademic activities • Daycare • Summer recreation programs • Afterschool care

14. Reasonable Accommodations Reasonable accommodations must be provided to facilitate equal opportunity to persons with disabilities • Definition has been vague • Cannot impose excessive financial or administrative burdens • Cannot require a fundamental or substantial modification in the program

15. Reasonable Accommodations Reasonable accommodations in schools may include adaptations and modifications of academic activities • Preferential seating • Adjusting the time to complete an assignment • Allowing tape recording of lecture • Allowing students to dictate answers • Allowing more time to take tests • Providing an interpreter

16. Avoiding Discrimination Disabling conditions can be considered if it is a relevant factor Schools must take actions to avoid discrimination • Structural alterations • Equipment redesign • Class reassignment • General classroom interventions

17. Discrimination in Postsecondary Education Applies to postsecondary education • Students cannot be discriminated against in admissions to postsecondary institutions • Nonacademic programs and services cannot discriminate against students with disabilities • Student housing • Athletics • Vocational and placement services • Financial assistance

18. Free Appropriate Public Education All qualified school-aged children are entitled to a free appropriate public education (FAPE) Issues remain over whether FAPE under Section 504 requires a higher standard to meet educational needs than reasonable accommodations

19. Free Appropriate Public Education Provided at no cost to parents or guardians Must be individualized Includes specially designed instruction and related services as required Developed by a group of knowledgeable persons Provided in least restrictive environment

20. Evaluation and Placement Procedures Evaluation must occur before placement to prevent misclassification or misplacement • Instruments with documented validity • Administered by trained personnel • Assess specific educational areas • Results accurately show student’s aptitude or achievement level • Information from a variety of sources collected

21. Procedural Safeguards Parents must be notified of rights in native language or primary mode of communication Parents may receive an impartial hearing with counsel to settle disagreements with school Parents must be notified when eligibility or placement actions are taken Parents may examine educational records

22. School District Responsibilities Appointment of a Section 504 Coordinator • Ensures that the district is in compliance • Keeps the public and school personnel informed so that the district does not discriminate • Develops the procedural safeguards and grievance procedures • Conducts self-evaluation in the district to ensure compliance

23. School District Responsibilities Locate and identify students who may qualify for special services • Annual child find • Students that transfer from other districts, students in private schools, children who are homeless • Referral for evaluation • Teachers, parents, administrators, others • Evaluation of students not eligible under IDEA • Evaluations completed in timely manner

24. School District Responsibilities School district must develop a 504 plan for students with disabilities • Developed by a multidisciplinary team • Includes accommodations and modifications to student’s educational program • Provided in general education or special education classrooms • Reevaluation before significant changes or periodically

25. Section 504 Plan Describes the nature of the disability and how it impacts a major life activity Provides the basis for determining the disability Documents the educational impact Describes necessary accommodations Documents the placement

26. Avoiding Complaints and Hearings To avoid complaints and hearings • Make good faith efforts to provide appropriate programs • Involve parents to the greatest extent possible • Conduct thorough and individualized evaluations • Document all school and parent contacts • Use mediation to resolve disputes

27. Filing a Grievance School district must establish grievance procedures • Grievances filed if discrimination based on disability is thought to occur • Can be filed by parent, student, community member, or staff member • No set requirements for grievance procedures

28. Filing a Complaint Grievances can be filed with the Office of Civil Rights (OCR) • Must be filed within 180 days of the alleged discrimination • Can be filed even if the local district grievance procedures have not been exhausted • Prior to investigation, the school can attempt to make a settlement with the complainant

29. Filing a Complaint OCR Investigation Process • Pre-determination settlement (PDS) • Matter settled without admitting to violation • School agrees to actions to resolve issues • On-site investigation • OCR interviews staff and reviews documentation • Verbal finding issued by OCR

30. Filing a Complaint On-Site Investigation • No violation found = End of the investigation • Violation found & OCR corrective action requirements issued • District complies = Letter-of-finding (LOF) violation corrected issued • District does not comply = LOF violation uncorrected issued & negotiations begin • If negotiations are unsuccessful, termination of federal funds to the district can occur