Unit III


What is Section 504?

Section 504 of the Rehabilitation Act of 1973 is a federal civil rights law that prohibits discrimination against individuals with disabilities:

 "no other qualified handicapped individual in the United States…shall solely by reason of his handicap, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”  

Senator Hubert Humphrey introduced the bill to the United States Senate in 1972 stating:

The time has come when we can no longer tolerate the invisibility of the handicapped in America ...children who are excluded from school ...These people have the right to live, to work to the best of their ability, to know the dignity to which every human being is entitled. But too often we keep children whom we regard as "different" or a "disturbing influence' out of school & community activities altogether, rather that help them develop their abilities ...Every child, gifted, normal and handicapped-has a fundamental right to educational opportunity. "Justice delayed is justice denied".

The intent of Section 504 is to provide students with disabilities equal access to educational programs, services, and activities.  Students with disabilities may not be denied participation in school programs and activities solely on the basis of disability. 

Section 504 defines disability on a broader basis than does IDEA. For information see "What is Special Education". The Section 504 Regulations can be found in the Code of Federal Regulations; 34 CFR Part 104. Website URL is: http://www.ed.gov/policy/rights/reg/orc/edlite-34cfr104.html.

Does Section 504 apply to schools?
Yes, Section 504 applies to “any program receiving federal financial assistance.” This includes public and private schools. 34 CFR Subpart D applies to preschool, elementary and secondary programs, services, and activities.

Does Section 504 apply to private and parochial schools?
If the private or parochial school receives federal funding, Section 504 applies.

Why is Section 504 important?
Section 504 is important for students with disabilities and their families as it guarantees “equal access” to educational programs and activities.  A student cannot be excluded from classes or extra curricular activities because of his or her disability.

Are Section 504 and Special Education the same?
No, Section 504 is a civil rights law that protects a broad range of students with disabilities from discrimination on the basis on their handicapping conditions.  No federal funding is provided to districts to implement Section 504.  It is the responsibility of the general education program to ensure compliance and funding.  Special Education is a federally funded statute that ensures that a free, appropriate public education is provided to IDEA 2004 qualified students. The protections of Section 504 apply to Special Education students.

Who is eligible for Section 504 services?
Students who meet the definition of a person with a disability are those who:

• have a physical or mental impairment which substantially limits one or more major life activities;
• have a record of such an impairment; or
• are regarded as having such an impairment
  

Physical and mental impairment is defined in the regulations as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin or endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities”.

The physical or mental impairment must substantially limit one or more major life activities.  Major life activities are defined as those functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.

What does substantially limited mean?
The regulations do not provide a definition of “substantially limited”; however, school districts are directed to develop their own definition.   Districts often look to the Americans with Disabilities Act (ADA) for guidance in defining “substantially limited”; the individual is ”unable to perform a major life activity that the average person in the general population can perform.” [29 CFR 1630.3 (j)(1)(i) ] or is “significantly restricted as to the condition, manner or duration under which the average person in the general population can perform the same major life activity.” [29 CFR 1630.3 (j)(1)(ii ]. 

In schools, we would compare the student with a disability against the skills and progress of the average student in the average classroom.  The nature and severity of the impairment, its expected duration, and the impact on a major life activity should be considered when defining “substantially limited”.” Both academic and nonacademic activities need to be considered.  Temporary disabilities, such as a broken leg or mild illness, often do not meet the definition of “substantially limited.”

Who determines eligibility?
A student must be evaluated by the school district in order to determine Section 504 eligibility.  The evaluation must be conducted by a team composed of individuals who know the student and understand the evaluation information.  Individuals who may be members of the Section 504 Team often include:

• teachers
• school nurse
• principal or administrative designee
• school psychologist
• school counselor
• parents and/or family members
• social workers
• specialists

Many schools use the Student Study Team (SST) as the Section 504 Team.The composition of the Section 504 team will change, depending upon the needs of the student.  The team should be knowledgeable of the student, the evaluation data, interventions that have been successful, strategies that have failed, and service options. 

How is eligibility determined?
Districts should develop specific standards for evaluation for Section 504 eligibility. Formal testing is not required.  Information should be considered and documented from a variety of sources, including:

• teachers’ reports
• parent/family information
• home language survey
• report cards
• response to interventions
• standardized tests
• referral forms
• disciplinary records
• health records
• prior Section 504 or Special Education evaluations or services
• private evaluation reports
• attendance records

Are there requirements for testing?
The regulations require that any tests or other evaluation materials used to determine eligibility be:

• validated for the specific purpose for which they are used;
• administered by trained personnel in conformity with the instructions provided by the test producer;
• tailored to assess specific areas of educational need; and
• selected and administered to best ensure that, when administered to a student with impaired sensory, manual or speaking skills, the test results accurately reflect whatever other factor the test purports to be measuring, assuming that factor is something other than the degree of impairment.

How are students referred?
Districts are required to develop policies and procedures to meet their Section 504 obligations.  A parent or teacher can request a referral for Section 504 eligibility.  In most schools, when a student is not progressing as expected, a referral will be made to the Student Study Team.  If the Student Study Team suspects a disability, a referral for a Section 504 or Special Education evaluation may be made. A district must conduct an initial evaluation when a student, because of his disability, “needs or is believed to need Special Education or related services.”

If eligible, how is the student served? 
Once the 504 Team has determined that a student is eligible, that is, he or she has a disability that substantially limits one or more major life activities, a service plan is developed.  This plan, typically known as a 504 Plan, details the accommodations that will be made to ensure that  the student has access to the academic curriculum and extracurricular programs and activities. 

Where are Section 504 students placed?
Section 504 is a general education statue.  The mandate of Least Restrictive Environment applies to Section 504 students.  Placement refers to the general education classroom with individually planned accommodations.  Students with disabilities may be placed in a separate class or facility only when they cannot be educated in the general education setting with the use of supplementary aids and services.

Is participation in extracurricular activities, including athletics, covered?
Section 504 applies to all school-sponsored activities, including athletics.  Schools must make efforts to ensure that all students have access to all programs, services, and activities and that no student is denied participation on the basis of his or her disability.  Students with 504 Plans are expected to meet the same conduct standards and activity prerequisites as their non-disabled peers.

What is a 504 Plan? 
A 504 Plan is a written document detailing the services and accommodations to be provided. The plan should include:

• a description of the disability
• the major life activity limited
• the basis for determining the disability and its educational impact
• necessary accommodations 
• placement in the least restrictive environment
• a review or re-evaluation date
• 504 Team members’ names

Is a 504 Plan required?
Districts are not required to document agreed upon services and accommodations.  Written documentation is, however, recommended. 

What are accommodations?
Accommodations are program adjustments made to remove disability-related barriers to a student’s full participation in school, including nonacademic and extracurricular activities, such as field trips, athletics, and assemblies.  Accommodations are made in order to provide a student equal access to learning and equal opportunity to demonstrate what he or she knows. Accommodations should not alter or lower the standards of the coursework or standards required for participation in extracurricular activities.  It is important that accommodations be:

ü      disability specific

ü      necessary, not merely helpful

ü      individualized

ü      documented

ü      communicated to all individuals involved.

Accommodations typically fall within eight categories:

• Environment                                     
• Teaching Strategies
• Assignments
• Materials
• Testing
• Behavior
• Health
• Other

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 Sample Accommodations

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Are there accommodations for statewide testing?
Federal law requires school districts to include students with disabilities in statewide and district-wide testing. In California, both the Standardized Testing and Reporting Program (STAR) and California High School Exit Exam (CAHSEE) allow certain accommodations for Section 504 and Special Education students.  The allowable accommodations are those that do not alter the content of the test nor provide inappropriate assistance to the student.  The testing accommodations used should be those that the student is familiar with and has used during instruction.  Accommodations used for California Statewide Assessments should be clearly documented on the IEP or 504 Plan.  See test accommodations matrix at http://www.cde.ca.gov/ta/tg/sa/documents/matrix5.pdf

Can Section 504 students be disciplined?
Students covered by Section 504 are expected to conform to the same behavior standards as their non-disabled peers, unless explicitly outlined in their 504 Plan.  They have, however, extra protections when facing serious discipline such as expulsion.  Prior to expelling a student, the 504 Team should conduct an evaluation (manifestation determination) to determine if the incident was related to the student’s disability.  If the 504 Team determines that the incident was not related to the disability, the school may discipline the student as they would any other student. Students currently using drugs or alcohol are exempt from Section 504 protections.

Should a student be re-evaluated?
A re-evaluation should be conducted periodically and is required when considering a change in placement.  Although re-evaluation is recommended on an annual basis, when reviewing the 504 Plan, the Office of Civil Rights has found districts to be in compliance if they re-evaluate a student every three years, as they do with Special Education students.  A re-evaluation is required prior to expelling a student or suspending a student for 10 days or more.  Suspension of 10 days or more constitutes a “change in placement.”  A re-evaluation should also be conducted prior to graduation from high school.

Can a student be dismissed from Section 504?
Once a student no longer meets the eligibility requirements, he or she should be dismissed from Section 504 protection.  Many districts that dismiss a student, decide to keep the student on a “watch” basis for one year to ensure that the student continues to progress.

What are parents’ rights under Section 504?
Section 504 provides certain parental rights. Specifically, parents have the right to:

• have their child provided a free, appropriate public education and be given an equal opportunity to participate in all school-related activities, free of discrimination because of a handicapping condition
• be informed by the school district of their Section 504 rights
• receive all information, including any attempt at identification, evaluation, re-evaluation or placement (educational programs and activities) of their child, in their primary language or mode of communication
• request an evaluation of their child and expect periodic re-evaluations before any change of placement
• examine all education records of their child and obtain copies of records at a reasonable cost
• request an amendment to their child’s educational record
• challenge evaluation and/or placement decisions
• file a compliant with the school district and/or the Office of Civil Rights
• an impartial hearing
• representation
• appeal the hearing officer's decision

Does Section 504 have Procedural Safeguards?
When a district proposes to change the identification, evaluation, or services of a student protected by Section 504, the parents/guardians must be provided with notice prior to any action.  The notice must contain the following four procedural safeguards:  

• notice of parental rights
• the opportunity to examine education records
• an impartial hearing with parent/guardian participation and representation by counsel
• the review procedure.

Who enforces Section 504?
The United States Department of Education, Office of Civil Rights (OCR) is responsible for enforcing Section 504.  OCR investigates complaints and will attempt to informally settle the complaint. In addition, OCR conducts periodic compliance reviews and provides technical assistance. There are twelve regional offices located throughout the nation. For information go to: http://www.hhs.gov/ocr/regmail.html

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  Go to: Unit IV:  What are the School District’s Responsibilities

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Diagnostic Center-North - CDE Diagnostic Centers - Section 504
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