I.          Introduction

Over 8 million children need special education services; however, only 3.9 million receive appropriate educational services.[1] 2.5 million, of the remaining children were "receiving an inappropriate education," and 1.75 million disabled children do not receive any educational services that they are entitled to.[2]

Special education is a broad term which does not apply to every child who is provided services by the educational system, or the law. There are a lot of terms used in school systems when dealing with children who have disabilities. These terms represent services and rights that children with disabilities are offered in schools. Knowing these terms, rights and services is key for parents advocating for their children.

There are two main laws that govern the educational system for children who have disabilities: Individuals with Disabilities Education Act (IDEA) and the Rehabilitation Act of 1973, Section 504 (504 plan). This paper will examine these laws to determine what benefits each provides, how each is different from the other, how the processes work and what every parent needs to know. An overview of the American with Disabilities Act (ADA) will also be provided, as it relates to disabled children. Lastly, this paper will address the disparity when comparing the IDEA and Section 504 for meeting the needs of disabled children.

Children identified with disabilities are classified within the school system as qualifying for an Individualized Educational Plan (IEP) and/or a 504 Plan. Both of these plans are guided by federal law which has been adopted by state law. Both plans address the educational needs of children, however each has different criteria and offer different entitlements to the child and their family. The difficulty arises when parents are not familiar with both plans.

Parents who are unaware of the differences in accommodations may settle for an educational plan that does not require the school to perform or offer as much as they should. By the time parents begin to learn the system, it may be too late to help the children properly. Years of frustration develop on the part of the child and the parents. In addition, many children may have disabilities that can be remedied if dealt with quickly and appropriately. If this does not occur these children may suffer a lifetime with their learning disability.[3]

This is a very complex area of the law. It is difficult even for trained attorney’s to distinguish between Section 504 and the IDEA. The schools and courts throughout the country have difficulty distinguishing the laws. It is even more difficult for parents who are participating in a process that they do not fully understand making it hard for them to fully advocate for their children.

Some parents wrongly think that schools are meeting the children’s needs when, in reality, they are entitled to more for their children. These schools may not be held accountable for meeting the needs of youth with disabilities as required by federal law. Some parents are talked into services that may offer less by schools who use scare tactics, such as telling the parent that their child will be labeled forever or grouped with dumb students. Other parents may fear this on their own and go on as if their children are fine to avoid the stigma. As a result, children are not being offered the help they need and are not able to meet their potential.

This paper seeks to determine the differences between IDEA and Section 504. It will also compare the entitlements and processes of both laws. It will examine whether students are wrongly being placed in Section 504 plans by schools in an effort to avoid the costs of implementing a individualized education plan (IEP). Most importantly, this paper seeks to help both attorneys and parents understand the laws so that they can be better advocates for disabled youth.

II.                History of Disabled Children in Education

For many years disabled children were excluded from public schools. [4] Two cases

helped to change public policy, Mills v. Board of Education and Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania.[5] Both cases extended benefits and rights to disabled children, beginning in the 1960’s. In PARC the court reviewed Pennsylvania statutes determining that they “prevented some 70,000 to 80,000 children with mental impairments from receiving a public education.”[6] In Mills, the court expanded PARC by saying that the state statute was unconstitutional.[7]

            The Elementary and Secondary Education Act of 1965 was the first federal legislation that approached the issue of disabled/handicapped children.[8] Federal grants were provided to states in an effort to implement the Act.[9] In 1970 The Education of the Handicapped Act was implemented specifically addressing handicapped children. [10]  A series of other similar legislation and federal compensation grants have followed.[11] By 1975 the various legislative acts evolved into the Individual with Disabilities Education Act.[12]

III.             The Federal Legislation

In order to better understand the law we will begin by examining the IDEA, Section 504 and the ADA. Each of these federal laws dictates how the special education system process is handled. Each brings a unique approach to educating the disabled child.

a.      The IDEA

IDEA is essentially a federal grant program to assist states to provide free appropriate public education (FAPE) to all students in need of special education in the least restrictive environment (LRE). FAPE requires that  “the education provided to students with disabilities must meet those students' needs as adequately as the needs of nondisabled students are met.” [13] LRE requires that a “child has a right to be educated, to the extent appropriate, with children who do not have a disability.”[14] 

Under this children in special education have the right:

“1. To be in a regular classroom unless the nature or severity of the disability is such that he or she cannot receive a satisfactory education in the regular classroom using additional aids and services.[15] 

2. To expect schools to offer a range of placements, including regular school classes, special classes, special schools or institutions, residential placements, and home instruction.[16]

3. To participate with children who do not have disabilities in extracurricular activities.[17]

4. To attend the school he or she would attend if he or she had no disability unless the IEP calls for a different placement.”[18]

Children designated as disabled under the IDEA are entitled to benefits, it provides disabled children with rights. There are procedural rights serve to protect families going through the special education process. The IDEA has very clear mandates as to the procedural safeguards provided to parents under the Act.[19] Among these rights, parents must be given notice of the proceedings at specific times during the process, parents must give permission prior to the school performing an evaluation of the child, and parents must give permission before a child can be placed in special education classes.[20] Most importantly, parents have the right to be involved in the process.[21]

Schools must identify students who may be disabled and entitled to special education services.[22] Schools must abide by specific evaluation guidelines as well.[23] Evaluations must be done by trained and knowledgeable individuals and must cover all areas related to the suspected disability.[24] There must be more than just one test or assessment procedure.[25] They must be in your child's native language if at all possible and must not discriminate against your child.[26] These tests must be conducted at no cost to you.[27] A child must undergo this formal evaluation, which involves both educational and psychological assessments to determine what special learning differences the child has.[28]

If a student qualifies for special education services, the school has mandates which guide them through writing and implementing an Individual Education Plan (IEP).[29] The IEP is created by a team of people, which should include several participants: the parents; general education teacher; special education teacher; principal; school psychologist; other individuals who have knowledge or special expertise regarding the child; and when appropriate the child being evaluated.[30] An IEP meeting should be held each year to make sure that the student's goals are being met and to make any necessary changes to the plan. Every three years, a re-evaluation is made to determine whether the student needs different services and to assess progress, since children needs may change. [31] Additionally, if procedural errors occur the parents have remedies through mediation, administrative or court hearings.[32] Children who are eligible under the IDEA are also protected by Section 504, which is broader than the IDEA.[33] Section 504 is broader but has a lore limited scope than IDEA [34]

b.      Section 504

The Rehabilitation Act of 1973 was implemented by Congress. [35] At first it was believed to deal with public accommodations and access to public buildings for the handicapped.[36] The Act spread to programs and activities.[37] Section 504 of the Rehabilitation Act applies to the public education system. Section 504 is often confused with IDEA, in part because both originally became effective in 1977. [38]

Section 504 is part of the Rehabilitation Act of 1973, a civil rights act which protects the rights of disabled persons. The purpose of this legislation is to protect disabled people from discrimination. Section 504 protects the disabled by prohibiting their exclusion or denial of benefits of any program receiving federal funding. Section 504 of the Rehabilitation Act at 29 U. S. C. § 794 states:

“Section 794. Nondiscrimination under Federal grants and programs
(a) Promulgation of nondiscriminatory rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in Sec. 705(20) of this title, shall, solely by reason of her or 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service . . .”[39]

This means that school systems that receive federal funding must meet the requirements of Section 504.  Public schools must “provide a free appropriate public education to children with disabilities in accordance with the Section 504 requirements regarding least restrictive setting, evaluation and placement, and procedural safeguards.”[40] An appropriate education is the provision of regular or special education and related aids and services that are designed to meet the individual needs of disabled persons as adequately as the needs of nondisabled persons.[41]    

Under Section 504, schools must also provide nonacademic and extracurricular services and activities so that disabled students have an equal opportunity for participation in those services and activities as nondisabled students.[42] These services and activities “are broadly defined to include: counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, referrals to agencies that provide assistance to handicapped persons, and employment of students, including both employment by the school and assistance in making available outside employment.”[43]

            “The definition of "disability" under Section 504 of the Rehabilitation Act is broader than that under the Individuals with Disabilities Education Act (IDEA).”[44]  Under Section 504 a person has a “disability” if they have, or regarded as having, a mental or physical impairment which substantially limits one or more of a person’s major life activities (MLA) such as caring for self, manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.[45] An evaluation is required of “any person who, because of a disability, needs or is believed to need special education or related services.”[46] It is important to note that Section 504 is inclusive because it allows for eligibility if individual only has a “history of” or is “regarded as” having a disability.[47] This allows for eligibility even if there is no real disability so long as there is a history or perception of the individual having a disability.[48]

Children suspected of having a disability under Section 504 must be evaluated, however the public school system is not obligated to pay for the evaluation. A full evaluation is not required though, as is with an IDEA. [49] Children who are categorized as having a “504 plan” are not afforded procedural rights unless they are also regarded as in need of special education services under the IDEA. While there are no set procedural rights, some school systems have implemented procedures that they use. As with the procedures under IDEA a team of participants will meet to evaluate the child and a meeting will be held which the parents have the right to attend.[50]

If a child is found to be eligible the team will meet to discuss and plan services and accommodations that the child will need. This is written into what is frequently called a 504 Plan. This should be a documented plan which is reviewed periodically, although no specific time period is required.[51]

The accommodations made for students can vary depending on the needs of each specific child. Typically, “accommodations are adjustments or modifications made by the classroom teacher(s) and other school staff to help students benefit from their educational program.”[52] These modifications and accommodations should reflect both the functional limitations of the individual child and ways of performing tasks or activities to participate without altering outcomes.[53] These modifications can be made to school and/or classroom programs and should ultimately place the disabled student at an equal level with their nondisabled peers.[54]

Schools evaluating students and providing services under Section 504 are responsible for:

1. “Provid[ing] written assurance of nondiscrimination.
2. Designat[ing] a 504 Coordinator to manage the program.
3. Provid[ing] grievance procedures to resolve complaints.
4. Provid[ing] notice of nondiscrimination in admission or access to its programs or activities. Notice must be included in a student/parent handbook.
5. Annually identify[ing] and locate all qualified children with disabilities who are not receiving a public education.
6. Annually notify[ing] persons with disabilities and their parents or guardians of the district's responsibilities under Section 504.
7. Provid[ing] parents or guardians with procedural safeguards.
8. Conduct[ing] a self-evaluation of school district policies, programs, and practices to make sure discrimination is not occurring.”[55]

These guidelines are not inclusive as the procedural guidelines provided under the IDEA. It is still important that parents work with the school team to ensure that the maximum benefit is given to their child.

c.       The Americans with Disabilities Act

The standard provided in Section 504 is the same standard in the Americans with Disabilities Act (ADA), Title II, Part A, 42 U.S.C. §12132.[56] Like Section 504 the ADA also applies to public schools. The ADA is also a civil rights act whose purpose is to protect the disabled from discrimination based on their disability. However, the ADA prohibits discrimination regardless of whether federal funds are received. The ADA requires that “[n]o 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.”[57]

Section 504 and the ADA have many similarities. Both require schools to provide a FAPE to disabled students. [A1] [58] Both laws seek to level the playing field for disabled people to receive benefits and services similar to the nondisabled.[59]  Section 504 and ADA are “responsible for accommodations and modifications in testing situations and programs, and improved building accessibility.” [60] These laws do not entitle a child to an individualized educational program (IEP),[61] they only prohibit discrimination they are not an entitlements.

IV.             Case Law

Southeastern Community College v. Davis was a Supreme Court's landmark decision in which the court construed Section 504 as not extending to "substantial adjustments in existing programs beyond those necessary to eliminate discrimination."” [62] Lyons v. Smith, [63] addressed the substantive standard for a student eligible solely under Section 504. In this case an eight year old who was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) was evaluated by the school district's multi-disciplinary team as ineligible under both the IDEA and Section 504.[64] It was claimed that the child’s ADHD would be categorized as “other health impairment” for IDEA, but at least would be 504 eligible.  The court held that section 504 was applicable “only if the handicapped child’s educational needs cannot be met as adequately as the nonhandicapped children’s needs are being met, without providing special education for the handicapped child. “[65]

Recent case law has expanded the definition of disability under the IDEA.[66] In Muller v. Committee on Special Education[67], the court held that “a student who displayed an inability to learn that was not explained by intellectual, sensory, or health factors, and who also exhibited a general mood of unhappiness and inappropriate behavior under normal circumstances was disabled and, thus, entitled to a free appropriate public education under the IDEA.”[68] In this case, the court granted tuition reimbursement to the parents of the student that the school wrongly offered a 504 Plan after concluding that she did not meet the IDEA definition of emotional disturbance.[69]

This is essential for parents who are often told their children are not eligible under the IDEA for services but offer a 504 plan in its’ place. This may sound helpful to parents struggling to get help for their children, however if the child is entitled to additional protections under IDEA, the child is getting short-changed. Parents need to become more knowledgeable in order to prevent this. School’s should be aware after this ruling that doing this can have costly consequences.

            In Borough of Palmyra Board of Education v. F.C., “the federal district court upheld tuition reimbursement for the parents of an ADHD child whom the district, after defensibly determining lack of eligibility under the IDEA, provided with a rather extensive 504 plan.”[A2] [70] This furthers the lesson to schools that a 504 plan should not simply be given as a consolidation prize.

The court also expanded the reach in Mary P. v. Illinois State Board of Education[71] holding that a child who was performing at normal grade level who had a voice disorder was a “child with a disability” based on the speech impairments infringements on the child’s ability to communicate.[72]

            The term disability is also being broadened under Section 504 and the ADA. In Cook v. State of Rhode Island Department of Mental Health, Retardation and Hospitals, the court held that being morbidly obese is a disability.[73] Bragdon v. Abbott expanded the coverage to HIV positive persons.[74] Migraine headaches,[75] asthma,[76] and heart disease [77] have also been included through recent case law.

V.                The Controversy

The IDEA recognizes 13 categories of special education needs: Autism; Deaf-blindness; Deafness; Hearing impairment; Mental retardation; Multiple disabilities; Orthopedic impairments; Other health impairment; Emotional disturbance; Specific learning disability; Speech or language impairment; Traumatic brain injury; or Visual impairment, including blindness. [78] Drug prevention is not a related service under IDEA.[79]   

There is great controversy in special education around three of these categories: Emotional disturbance; Specific learning disability; and other health impairment. When parents or schools have a child whose disability does not fit neatly into a category it is likely because the child’s issue concerns one of these areas. This is when it is more likely for a child to be offered a 504 plan in exchange for an IEP. That is fine, if the child only needs a 504 plan, but if that child should be entitled to an IEP, the child has suffered greatly. Parents must be extremely knowledgeable about these areas.

“Emotional disturbance” may be the most difficult area for parents and schools. It is defined as:

(I)                          “The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:

a.       An ability to learn which cannot be explained by intellectual, sensory or health factors;

b.      An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

c.       Inappropriate types of behavior or feelings under normal circumstances;

d.      A general pervasive mood of unhappiness or depression; or

e.       A tendency to develop physical symptoms or fears associated with personal or school problems.”[80]

While emotional disturbance does not include children who have regular social adjustment issues, it has the potential to include children with psychiatric diagnosis as well as children with other emotional issues provided it affects their educations.[81] This makes the evaluation stage of the process extremely important to children with mental health issues. Routinely, there are several mental health disorders that are areas of conflict under the IDEA. Among these disputed conditions are bipolar disorder in which symptoms come and go, conduct disorders, and other disorders that are inconsistent in their duration.

The Maryland Disability Law Center cites four common problems with this definition: (1) children who were only recently diagnosed with an emotional disturbance may be unfairly excluded; (2) the school may only consider the grades to determine if the condition adversely affects educational performance which is illegal; (3) some schools exclude children with certain psychiatric disorders under the socially maladjusted loophole; and (4) schools often think that they are not financially responsible for psychiatric evaluations which is false.[82]

Children that are eligible for services under this category are entitled to special education service specifically designed to meet the child’s needs through an IEP. However, it is possible that the parent may be dissuaded from seeking these services for fear that their child will be labeled or placed in classes solely with disabled children. Some schools have even used this to deter parents of children with mental health issues from seeking an IEP. This may lead schools and parents to look to section 504 as an alternative. This is financially beneficial to schools that will save money by avoiding IDEA eligibility and implementation.

Another large area of controversy relates to the Specific Learning Disabilities definition,  “since such children now constitute almost half of all the nation's 5.3 million children receiving special education and related services.”[83] Children diagnosed with dyslexia and other specific learning disabilities “constitute over 2,424,000 of the 5,318,000 children served under IDEA programs.”[84] Specific learning disabilities is defined as:

“Children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include children who have learning problems which are the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.”[85]

Schools frequently apply different standards as to what disabilities fit this definition. Many schools require a “severe discrepancy” or “significant discrepancy” between the child’s achievement, measured by grades, and the child’s intellectual ability “in at least one of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning.”[86] However, school’s that utilize standardize testing to identify children who are behind according to their formulas, it may be too late to by the time the child is identified for services. The school’s test may violate the IDEA if it fails to consider the individual’s needs.[87]

            Finally, the “other health impairment” category is viewed by some as a catch-all. The definition, added in a regulation in 1999, defines other health impairment as “having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems such as ... attention deficit disorder or attention deficit hyperactivity disorder ... and [a]dvsersely affects a child's educational performance.”[88] Frequently, common disabilities such as Attention Deficit Hyperactivity Disorder are addressed under this category. Children with these disorders may be covered by IDEA as well as section 504, depending on their school performance.[89]  

This is similar to the “otherwise qualified” part of Section 504. A person who is "otherwise qualified," means that they are eligible to participate in a program or activity despite the existence of a listed or acknowledged impairment and they must be permitted to participate in the program or activity as long as it is possible to do so by means of a “reasonable accommodation.”[90]

VI.              Advocacy is the Answer

The value of the IDEA and Section 504 are only received if they are properly

understood and implemented. The complex terminology and process has the tendency to be both overwhelming and misunderstood by parents and schools alike.[91] Parents frequently place a great deal of trust and deference in the opinions of the teachers, believing that they are better trained. This inhibits parents from becoming full participants in the educational process. Parents who navigate the system in an effort to seek an education that serves their child’s needs, must become familiar with these terms and procedures. Parents, who are educated, offer the school system a partner to meet the child’s needs. Children who have parental support fare better in the pursuit of their educational rights than children whose parents are not involved.[92] Other parents who are educated and press the school for services have reported fear that the schools will retaliate against them or their children for asserting their rights.[93] 

            Many grass-roots organizations have been started by parents seeing the need for education of the process. These groups frequently offer training but also offer lay-person advocates to serve in place of the parent if a parent cannot attend the meetings themselves. “Lay advocates are specially trained to counsel parents, to assist them in developing an IEP, and even to represent them in administrative hearings.”[94] Some organizations have these advocates available to attend the meeting with a parent as well.

In addition, some parents who need and advocate contact and attorney. Attorneys specializing in special education law are very helpful to parents navigating the system. “Ideally, the lawyer serves as an objective, informed advocate for the parents and children, promoting the child's dignity and autonomy through the parents' assertion of his or her rights.”[95] Lawyers can help parents get better IEP’s or 504 plans written for their children.[96] They can help the parents voice be heard at the hearings and ensure that the procedures are followed properly. Lawyers can also help advocate for the child in any hearings that are required and can help establish better public policies for disabled children.[97] In cases that are controversial, as is usually the case with specific learning disabilities or emotional disturbances, it is important to have an advocate who can work through the facts and apply them to the law. 

VII.          Conclusion

Parents of children with disabilities want their children to meet their maximum potential and they hope that the IDEA and Section 504 will provide that for their child. However, no child is guaranteed an education that meets the maximum potential, not even disabled children.[98] Children are only guaranteed an appropriate education, as stated in Board of Education v. Rowley.[99] Perhaps that is the root of the true problem. If all children, disabled and abled alike, were given an education that allowed them to meet their full potential all children and all of society would benefit, despite the cost.

            Recent trends in teaching are focusing on teaching methods that reach all children’s learning styles. New teachers are better educated in meeting the needs of children in the classroom. This is very beneficial since we have known that some children learn visually, some verbally, some are hands on and others need a combination. The classroom of the future will use all of these methods in each lesson. Teachers will be better equipped to notice and assess the needs of their students. Not only will they be modeling better modes of communication, but children will learn better modes of communication. Focusing on better teaching methods to help all children reach their maximum potential is the proper focus for all children, now we must wait for Congress to agree.

WHAT ARE SOME DIFFERENCES BETWEEN SPECIAL EDUCATION AND SECTION 504?

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SECTION 504
PARENT/STUDENT RIGHTS
IN IDENTIFICATION, EVALUATION AND PLACEMENT

The following is a description of the rights granted under Section 504 to students with disabilities. The intent of the law is to keep you fully informed concerning decisions about your child and to inform you of your rights if you disagree with any of these decisions.

You have the right to:

1. Have your child take part in, and receive benefits from public education programs without discrimination because of his/her disability;
2. Have the school district advise you of your rights under federal law;
3. Receive notice with respect to identification, evaluation, or placement of your child;
4. Have your child receive a free appropriate public education. This includes the right to be educated with students without disabilities to the maximum extent appropriate. It also includes the right to have the school district make accommodations to allow your child an equal opportunity to participate in school and school-related activities;
5. Have your child educated in facilities and receive services comparable to those provided to students without disabilities;
6. Have evaluation, educational, and placement decisions made based upon a variety of information sources, and by persons who know the student, the evaluation data, and placement options;
7. Have your child receive special education and related services if he/she is found to be eligible under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act;
8. Have transportation provided to and from an alternative placement setting at no greater cost to you than would be incurred if the student was placed in a program operated by the district;
9. Have your child be given an equal opportunity to participate in nonacademic and extracurricular activities offered by the district;
10. Examine all relevant records relating to decisions regarding your child's identification, evaluation, educational program, and placement;
11. Obtain copies of educational records at a reasonable cost unless the fee would effectively deny you access to the records;
12. A response from the school district to reasonable requests for explanations and interpretations of your child's records;
13. Request amendment of your child's educational records if there is reasonable cause to believe that they are inaccurate, misleading or otherwise in violation of the privacy rights of your child. If the school district refuses this request for amendment, it shall notify you within a reasonable time, and advise you of the right to a hearing;
14. File a 504 grievance if you have a disagreement with the school;
15. Request mediation or an impartial due process hearing related to decisions or actions regarding your child's identification, evaluation, educational program or placement. You and the student may take part in the hearing and have an attorney represent you;
16. File a complaint with the Regional Office for Civil Rights.