Report Says Section 504
Rules Cause Confusion for Schools
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Students with
health or cognitive problems who aren’t eligible for services under the
Individuals with Disabilities Education Act (IDEA) have protection under
another federal law: Section 504 of the Rehabilitation Act of 1973. But school
administrators may be confused about evaluating students for Section 504
eligibility, research conducted by a Pennsylvania middle school principal and a
law professor shows. “There’s a lot of openings for problems and slip-ups,”
said Rachel A. Holler, the principal of Stewart Middle School in Norristown,
Pa., who conducted the research as her doctoral thesis. A report on her
findings, written with Perry A. Zirkel, was published in this month’s edition
of the NASSP Bulletin, a publication of the National Association of Secondary
School Principals. Their estimate, based on answers received in 2005 from 549
public school administrators, suggests that about 1.2% of public school
students receive Section 504 services only, compared with 12% served under the
IDEA. Every student who is eligible for help under the IDEA is also covered
under Section 504, which prohibits discrimination against people with
disabilities by any agency that receives federal money. Not all Section 504
students, however, are necessarily eligible for special education services. And
recent legal decisions suggest that a child who is not eligible for the IDEA is
likely not eligible for Section 504 accommodations either, the researchers say.
The survey of
principals shows, though, that school leaders are more likely to err on the
side of providing accommodations to students anyway. While some schools may
“overidentify” Section 504 students, there may be students who are eligible to
receive Section 504 accommodations but are not getting them, Ms. Holler said.
The best-known and litigated area of special education law is the IDEA, which
has produced a deep body of case law, literature, and guidance for teachers,
administrators, and parents since its enactment in 1975 as the Education for
All Handicapped Children Act. The IDEA deals directly with education, in
contrast to Section 504, which covers more areas of public life. A similar but
newer law, the 1990 Americans with Disabilities Act (ADA), covers all of the
services, programs, and activities conducted by public entities, including
state and local governments. Instead of determining whether a child falls into
one or more of the 13 disability categories outlined by the IDEA,
administrators evaluating a student for Section 504 help must decide if the
child has a physical or mental impairment that substantially limits one or more
major life activities. For students, “learning” is a major life activity. But
complexity creeps in because some disabilities—for example, attention deficit
hyperactivity disorder—could merit either special education services or
accommodations offered by Section 504. The “substantial limitation” standard
of Section 504 also requires that a student be measured compared with an
average peer, not against his or her own potential, Mr. Zirkel said. Such a
standard makes it difficult for high-achieving students to qualify for a
Section 504 plan, he said, since their disabilities appear to place no
“substantial limitation” on their learning compared with that of other
students.
In the
survey, about 60% of the school administrators answered incorrectly that they
provide accommodations so that the student could learn up to his or her full
potential. Mr.
Zirkel said recent legal rulings have tended to make the law more “stingy,” but
administrators may still feel compelled to give accommodations as “consolation
prizes” to students whose disabilities aren’t severe enough to qualify them for
special education. While the IDEA is sometimes criticized as being an
overprescriptive law that doesn’t offer enough flexibility to districts, the
broad, definition-free nature of Section 504 offers its own pitfalls, said
Edward M. Friedlander, the executive director of pupil-personnel services for
the 3,400-student Jericho, N.Y., school district. Overidentifying students
would not seem to spark the same kind of litigation that schools get into when
they withhold services. But the problem with giving Section 504 accommodations
too widely, Mr. Friedlander said, is that districts don’t get any federal
funding for assistance, as they do with the IDEA. The twists and turns of the
law also can be confusing to lawyers and advocates for parents, said Bill
Brownley, a lawyer in Fairfax, Va. He agrees that 504 plans are sometimes given
out to mollify parents. “And sometimes people think, we’re giving them this
prize, but we don’t have to do a lot,” Mr. Brownley said. But once a child
receives a Section 504 plan, he or she is eligible for many of the protections
that are provided to students through the IDEA, said Charles A. Cognato, the
assistant principal of Stetson Middle School in West Chester, Pa.