“MINOR ADJUSTMENTS” AND OTHER NOT-SO-MINOR
OBLIGATIONS: SECTION 504, PRIVATE RELIGIOUS K-12
SCHOOLS, AND STUDENTS WITH DISABILITIES
Lynn M. Daggett*
I. INTRODUCTION
Countless students with disabilities are enrolled in private schools, most
of which are religious.1 One such student, James Zobrest, was the subject
of a United States Supreme Court case testing the constitutionality of a
publicly-funded sign language interpreter at the Catholic high school in
which James was enrolled.2 That case examined the rights and obligations
of public schools;3 this Article focuses on private religious schools and
examines their obligations to students with disabilities such as James
Zobrest. Private schools are commonly regulated by Section 504 of the
Rehabilitation Act of 1973, which prohibits disability discrimination4 and
requires private schools to make “minor adjustments” to their programs for
students with disabilities.5 While providing a personal sign language
interpreter to James Zobrest would be more than a required “minor
adjustment” for a private school, the term is undefined and largely
uninterpreted. This Article examines obligations private schools owe to
their students with disabilities and attempts to provide guidance on “minor
adjustments.”
Part II of this Article provides a brief overview of the relevant federal
statutes. The federal special education statute (the IDEA),6 applies to
public schools and not to private schools.7 It requires public schools to
* Professor, Gonzaga Law School. J.D., Ph.D. (Education).
1
See infra notes 72–73 and accompanying text.
2
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 3 (1993) (holding an on-site governmentfunded sign language interpreter for an IDEA student enrolled by his parents in a private religious
school does not violate the Establishment Clause).
3
Id. at 9–11.
4
29 U.S.C. § 794 (2012).
5
34 C.F.R. § 104.39 (2013).
6
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1482 (2012).
7
See Individuals with Disabilities Education Act (IDEA) 1997/Services to Parentally Placed Private
School Students with Disabilities, U.S. DEP’T OF EDUC., http://www2.ed.gov/about/offices/list/oii/nonpublic/
idea1.html (last modified Aug. 12, 2005) (“IDEA Part B can provide benefits to students with disabilities who
are placed by their parents in private schools. At the same time, it does not impose requirements on private
schools.”). See generally 20 U.S.C. §§ 1412, 1413.
301
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UNIVERSITY OF LOUISVILLE LAW REVIEW
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identify and evaluate eligible students,8 including students enrolled in
private schools like James Zobrest.9 It does not, however, give private
school students any individual rights to any services from the public
school.10 So, it is actually quite likely that a public school would not agree
to provide a sign language interpreter to James Zobrest as a private school
student. In this event, James’s family might look to the private school for
this and other services.
Although not subject to the IDEA, private schools receiving federal
funds are governed by Section 504.11 In fact, even if a private school does
not directly receive federal funds, it may be covered if it indirectly receives
federal funds or services, perhaps through the local public school.12 Private
schools are also nominally covered by Title III of the Americans with
Disabilities Act (ADA), but Title III includes a broad exemption for
religious schools, which comprise the vast majority of private schools.13 As
Section 504 is the governing law for many private religious schools, Part III
of the Article examines which students are protected by Section 504, paying
particular attention to the amendments effective in 200914 which
significantly broaden eligibility.15
Part IV of the Article explores private school obligations to students
under Section 504. These obligations are substantial (e.g., designating and
training a Section 504 Coordinator, establishing an internal Section 504
grievance process,16 and maintaining physical accessibility17). Failure to
meet Section 504 obligations can result in complaints filed with the
enforcing agency, lawsuits, or both.18 Potential liability extends to damages
and attorney’s fees.19 First and foremost of these obligations is the ban on
discrimination in all aspects of the private school’s program, both academic
and nonacademic.20 The Article reviews the enforcing agency’s 2013
guidance concerning nondiscrimination in athletics,21 obligations
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Id. § 300.131.
See id.
See id. §300.137(a).
See infra Parts II.C, II.E.
See infra Part II.F.
See infra Part II.D.
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
Id.
See infra Part IV.A.
See infra Part IV.B.
See infra Part IV.F.2–F.3.
See infra Part IV.F.3.
See infra Part IV.C.
See infra notes 147–55 and accompanying text.
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“Minor Adjustments” and Other Not-So-Minor Obligations
303
concerning retaliation,22 and disproportionate and discriminatory student
discipline23 as they impact the scope of this nondiscrimination obligation.
The other major obligation of private schools is the affirmative one to
make “minor adjustments” to the program. The Article explores what are
“minor adjustments” by reviewing the very limited interpretive case law
and administrative guidance on this issue.24 The Article proposes that
“minor adjustments” can be more fully defined by: (1) comparison with the
different and higher standards found elsewhere in these laws; and (2)
considering the requirement within the statutory context of
nondiscrimination; (3) the financial context of private schools; (4) typical
private school expertise about disability, curriculum, and pedagogy relative
to public schools; and (5) the individual private school’s past actions
concerning adjustments to its program for students who do not have
disabilities.
II. OVERVIEW OF RELEVANT FEDERAL STATUTES AND THEIR
APPLICABILITY TO PRIVATE SCHOOLS
The IDEA, the federal special education statute, applies to public
schools and not to private schools.25 It provides private school students
with rights to be evaluated and identified as eligible by the public school,
but does not afford private school students any individual rights to special
education from the public school.26
Two federal civil rights statutes banning disability discrimination do
apply to students at private schools. Section 504 governs schools receiving
federal funds;27 many private schools receive federal funds, either directly
or indirectly.28 Title III of the ADA applies to private schools categorically,
but broadly exempts religious private schools.29 The vast bulk of private
schools are religious.30 Consequently, Section 504 commonly governs
private religious schools.
22
23
24
25
26
27
28
29
30
See infra Part IV.D.
See infra notes 165–69 and accompanying text.
See infra Part IV.E.
See supra note 7 and accompanying text.
See 34 C.F.R. § 300.137(a).
See id. § 104.3(h).
See infra Part II.E–F.
See infra notes 66–70 and accompanying text.
See infra notes 72–73 and accompanying text.
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A. The IDEA does not apply, nor do IDEA-like obligations
The federal special education statute, the IDEA, applies to public
schools.31 It requires public schools to engage in child find, including
identification and evaluation of eligible private school students.32
Obligations to provide a free appropriate public education (FAPE) using an
individual education program (IEP)33 to eligible students are limited to
students enrolled in the public school.34 As to private schools, IDEA
obligations of child find and evaluation, FAPE, IEPs, and the IDEA set of
procedural safeguards are not required.35 IDEA rights would flow from the
public school to a private school student if placed there by the public
school,36 and the private school in such a case is often obligated by its
contract with the school district to comply with IDEA provisions.37 Such a
contract could provide for the private school to indemnify the school
district.38
B. Public school obligations to private school students
The IDEA requires not only that public schools seek out and identify
eligible private school students,39 but also that they spend a proportionate
share of their federal IDEA funds on services for the group of private
school students.40 As to these services, not much money is involved. As a
hypothetical example, School District receives $120K in federal IDEA
funds and identifies 100 IDEA students. Ten (10%) of these students attend
private school. School District must spend 10% of the $120K ($12K) on
this group of ten private school students.41 These private school students
have no entitlement to FAPE, or to a share of the pot (e.g., $1200 per
31
See generally 20 U.S.C. §§ 1412, 1413 (2012).
20 U.S.C. § 1412(a)(3), (a)(10); 34 C.F.R. § 300.131.
33
20 U.S.C. § 1412(a)(1), (4).
34
Id. § 1412(a)(10)(C).
35
See id. § 1412(a)(10), (11).
36
Id. § 1412(a)(10)(B).
37
See id. § 1412(a)(10)(A)(vi).
38
See, e.g., Koehler ex rel. Koehler v. Juniata Cnty. Sch. Dist., No. 1:07-CV-0117, 2008 WL
1787632, at *7–8 (M.D. Pa. Apr. 17, 2008).
39
20 U.S.C. § 1412(a)(3), (a)(10). Child find and evaluation obligations can be challenged via
IDEA due process claims against the public school. See 34 C.F.R. § 300.140 (2013).
40
20 U.S.C. § 1412(a)(10); 34 C.F.R. § 300.132, .133, .137. See generally Individuals with Disabilities
Education Act (IDEA) 1997/Services to Parentally Placed Private School Students with Disabilities, U.S. DEP’T
OF EDUC., http://www2.ed.gov/about/offices/list/oii/nonpublic/idea1.html (last modified Aug. 12, 2005)
(detailing the role private schools have in school districts’ performance of their IDEA obligations to private
school students).
41
See 34 C.F.R. § 300.133.
32
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305
student), or to any services, or to IDEA due process.42 School District
would write services plans for whichever of the ten students do get
services.43
The United States Constitution does not prohibit public schools from
sending services on-site to private religious schools.44 However, some state
constitutions prohibit this arrangement.45 In such states, there may be a
state statute which provides for a right of part-time enrollment in the public
school to receive special education or similar services.46 In this event, the
public school would have special education obligations to the (part-time)
enrolled students; obligations would not be limited to proportionate
spending of federal IDEA funds, and FAPE and due process rights would
attach.
As discussed in Part II.F, infra, to the extent federal funds are provided
to a private school, even if the source is the public school, the private
school becomes subject to Section 504. While there appears to be no case
law on point, it would seem that a private school student’s enrollment in the
public school to receive federally funded IDEA services would not trigger
Section 504 coverage of the private school in which the student is also
enrolled.47
C. Section 504
Section 50448 of the Rehabilitation Act of 1973,49 which prohibits
disability discrimination, is one of several federal civil rights statutes
42
See id. § 300.137.
Id. § 300.132(b).
44
See, e.g., Agostini v. Felton, 521 U.S. 203, 234–35 (1997) (permitting on-site government-funded
Title I remedial services at private religious school); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1,
13–14 (1993) (permitting government-funded sign language interpreter for an IDEA student enrolled by
his parents in a private religious school); cf. Mitchell v. Helms, 530 U.S. 793, 835–36 (2000) (permitting
government-funded computers and library books at a private religious school).
45
See, e.g., WASH. CONST. art. IX, § 4 (“All schools maintained or supported wholly or in part by
the public funds shall be forever free from sectarian control or influence.”).
46
For example, in Washington, private school and home school students have a state law right to
enroll part-time in the public schools for any program, course, service, or activity not offered in their
private school or home school. WASH REV. CODE § 28A.150.350 (2012); WASH. ADMIN. CODE §§ 392134-002 to -030 (2013). So, for instance, students could enroll part-time in public school to receive
needed special education instruction or related services. See WASH REV. CODE § 28A.150.350; WASH.
ADMIN. CODE §§ 392-134-002 to -030. States receive prorated state education funding for services
provided to these students. See WASH REV. CODE § 28A.150.350; WASH. ADMIN. CODE §§ 392-134025, -030.
47
See 29 U.S.C. § 794(a) (2012) (extending antidiscrimination protection to programs or activities receiving
federal funds); Hunt v. St. Peter Sch., 963 F. Supp. 843, 849 (W.D. Mo. 1997) (noting that a school must receive
federal financial assistance in order to recover under Section 504).
48
29 U.S.C. § 794.
43
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triggered by a school’s receipt of (at least more than de minimis) federal
education funds50 or federally funded services or property.51 Section 504
does not include any of its own funding.52
Bans on disability discrimination are “one-way streets”; favorable
consideration of disability is not illegal discrimination against students
without disabilities.53 Discrimination is prohibited not only against enrolled
students, but also against applicants, as well as employees, parents,
volunteers, and visitors.54 This Article examines obligations as to students.
Section 504 also includes affirmative obligations, the nature of which
varies. For employees, schools owe “reasonable accommodations.”55
Higher education students are owed “academic adjustments” as “necessary”
to avoid discrimination.56 For K-12 public school students, schools owe
significant special education obligations, including FAPE and an IEP.57 For
the subject of this article, K-12 students in private schools, the obligation
owed is “minor adjustments” to the educational program.58
49
Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355. School receipt of federal funds also
triggers Title VI, which prohibits race and national origin discrimination, 42 U.S.C. § 2000d, Title IX,
which prohibits gender discrimination, 20 U.S.C. § 1681, FERPA, which provides for access to and
confidentiality of student records, id. § 1232g, and the PPRA, which gives parents certain rights
concerning access to instructional materials and collection and dissemination of sensitive personal
information, id. § 1232h.
50
Compare Marshall v. Sisters of the Holy Family of Nazareth, 399 F. Supp. 2d 597, 603 (E.D. Pa.
2005) (receipt of only de minimis federal education funds—a free lunch provided to one student over the
course of a year—means school is not subject to Section 504) with K.H. v. Vincent Smith Sch., No. CV06-0319(ERK)(JO), 2006 WL 845385, at *11 (E.D.N.Y. Mar. 29, 2006) (rejecting the de minimis
exception found in Marshall finding “no support in the law” for it). Schools that receive more than de
minimis funds are clearly covered by Section 504. Spann v. Word of Faith Christian Ctr. Church, 589 F.
Supp. 2d 759, 765–67 (S.D. Miss. 2008) (use of federal voucher to pay preschool tuition triggers
Section 504); Hunt, 963 F. Supp. at 849 (receipt of school lunch funds and Title I ESEA funds triggers
Section 504); Our Lady of Assumption Sch., 45 IDELR (LRP Publ’ns) 64 (OCR Nov. 16, 2005) (no
direct or indirect receipt of federal education funds means school is not subject to Section 504; receipt of
Department of Agriculture funds is not a sufficient trigger); Cardinal Spellman High Sch., 38 IDELR
(LRP Publ’ns) 112, at 455 (Mass. SEA Dec. 9, 2002) (private school is not subject to Section 504
without evidence that it is a recipient of federal funds). See generally John Liekweg, The Americans
with Disabilities Act, Section 504, and Church-Related Institutions, 38 CATH. LAW. 87 (1998); Perry A.
Zirkel, Section 504, the ADA, and Parochial School Students, 211 EDUC. L. REP. 15 (2006).
51
34 C.F.R. § 104.3(h) (2013).
52
OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., GUIDELINES FOR EDUCATORS AND ADMINISTRATORS
FOR IMPLEMENTING SECTION 504 OF THE REHABILITATION ACT OF 1973—SUBPART D 4 (2010); see also 29
U.S.C. § 794(l).
53
Cf. 42 U.S.C. § 12201(g) (ADA).
54
See, e.g., 34 C.F.R. §§ 104.11 to .14 (employees); .42(b) (postsecondary applicants).
55
34 C.F.R. § 104.12.
56
Id. § 104.44.
57
Id. § 104.33.
58
Id. § 104.39.
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“Minor Adjustments” and Other Not-So-Minor Obligations
307
Section 504 is administratively enforced by the Office for Civil Rights
(OCR) in the U.S. Department of Education;59 OCR also offers technical
assistance.60 Private claims may also be filed in court.61
D. Title III of the ADA
The ADA62 is a more recent federal statute which was enacted pursuant
to Congress’s authority to regulate interstate commerce.63 It thus applies
without regard to receipt of federal funding.64 ADA Title III forbids
disability discrimination in places of public accommodation.65 Private
schools are explicitly included as entities governed by Title III.66 When
Title III of the ADA applies, it requires not only nondiscrimination but also
“reasonable modifications,” which do not include accommodations which
would “fundamentally alter the nature of such . . . services[.]”67 Limited
commentary examines ADA obligations toward private school students.68
However, Title III includes a “very broad” exemption for “religious
organizations or entities controlled by religious organizations,”69
presumably including parochial and many other religious schools. OCR
interprets the ADA exemption to apply when “a religious organization
controls the operations of . . . [a private] school.”70
59
See id. § 104.61 (incorporating sections 100.6–.10).
Id.
61
29 U.S.C. § 794a (2012); see also infra Part IV.F.3.
62
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as
amended at 42 U.S.C. §§ 12101–12300 (2012)).
63
See id. §12101(b)(4) (also invoking Congress’s power to enforce the Fourteenth Amendment).
64
See Little v. Lycoming Cnty., 912 F. Supp. 809, 818 (M.D. Pa. 1996) (“The ADA was enacted to extend
prohibitions against discrimination against the handicapped beyond the federal government and entities that
receive federal funding.”).
65
42 U.S.C. §§ 12181–12189.
66
See id. § 12181(7)(J); 28 C.F.R. §§ 36.102, .104 (2013).
67
42 U.S.C. § 12182(b)(2)(A)(ii); Letter to John Wodatch, Former Chief, Disability Rights Section, Civil
Rights Division, U.S. Dep’t of Justice, 9 NDLR (LRP Publ’ns) 42 (1997).
68
See Joseph F. Smith, Jr., & M. Kay Runyan, How Private Secondary Schools Can Meet Their
Obligations to Accommodate Students with Specific Learning Disabilities, 17 W. NEW ENG. L. REV. 77,
77 (1995).
69
42 U.S.C. § 12187. The applicable regulations exempt “any religious entity[.]” 28 C.F.R. §
36.102(e). The exemption is characterized as “very broad” in the preamble to the regulations. Id. pt. 36
app. C.
70
28 C.F.R. pt. 36 app. C (specifically mentioning church operated schools and diocesan school
systems as exempt and noting that a lay board does not necessarily mean the school is not exempt; the
issue is control by a religious organization). It may not be clear whether a religious school is exempt.
See, e.g., Doe v. Abington Friends Sch., 480 F.3d 252, 259 (3d Cir. 2007) (sending case back for further
investigation on whether school’s Quaker ties were sufficient to exempt it from the ADA); Marshall v.
Sisters of the Holy Family of Nazareth, 399 F. Supp. 2d 597, 605 (E.D. Pa. 2005) (school operated and
directed by nuns in religious order is exempt religious organization); White v. Denver Seminary, 157 F.
60
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State nondiscrimination laws may also apply to private schools and may
also exempt religious schools.71
E. Direct applicability of federal disability discrimination statutes to
private schools
Direct applicability of the ADA Title III and Section 504 to private
K-12 school students is as follows:
Supp. 2d 1171, 1173–1174 (D. Colo. 2001) (seminary is “pervasively” religious organization exempt
from Title III of ADA).
The preamble to the ADA regulations notes:
The ADA's exemption of religious organizations and religious entities controlled by
religious organizations is very broad, encompassing a wide variety of situations. Religious
organizations and entities controlled by religious organizations have no obligations under the
ADA. Even when a religious organization carries out activities that would otherwise make it
a public accommodation, the religious organization is exempt from ADA coverage. Thus, if a
church itself operates a day care center, a nursing home, a private school, or a diocesan
school system, the operations of the center, home, school, or schools would not be subject to
the requirements of the ADA or this part. The religious entity would not lose its exemption
merely because the services provided were open to the general public. The test is whether
the church or other religious organization operates the public accommodation, not which
individuals receive the public accommodation's services.
Religious entities that are controlled by religious organizations are also exempt from
the ADA's requirements. Many religious organizations in the United States use lay boards
and other secular or corporate mechanisms to operate schools and an array of social services.
The use of a lay board or other mechanism does not itself remove the ADA's religious
exemption. Thus, a parochial school, having religious doctrine in its curriculum and
sponsored by a religious order, could be exempt either as a religious organization or as an
entity controlled by a religious organization, even if it has a lay board. The test remains a
factual one—whether the church or other religious organization controls the operations of the
school or of the service or whether the school or service is itself a religious organization.
Although a religious organization or a religious entity that is controlled by a religious
organization has no obligations under the rule, a public accommodation that is not itself a
religious organization, but that operates a place of public accommodation in leased space on
the property of a religious entity, which is not a place of worship, is subject to the rule's
requirements if it is not under control of a religious organization. When a church rents
meeting space, which is not a place of worship, to a local community group or to a private,
independent day care center, the ADA applies to the activities of the local community group
and day care center if a lease exists and consideration is paid.
28 C.F.R. pt. 36 app. C.
71
See, e.g., WASH. REV. CODE § 49.60.040(2) (2013). For example, in Washington, state statute
prohibits disability discrimination by places of public accommodation without regard to government
funding. Id. However, a parochial school may be exempt as an “educational facility . . . operated or
maintained by a bona fide religious or sectarian institution.” See id.
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“Minor Adjustments” and Other Not-So-Minor Obligations
Receives
federal funds
309
Receives
no federal funds
Private
schools generally
ADA Title III and
Section 504
ADA Title III only
Exempt from ADA
Title III as religious
school
Section 504 only
Neither Section 504
nor ADA Title III
About 10% of school-age children are educated in private schools.72 Of
this group, the vast majority (about 80%) attend religious schools.73
Catholic schools enroll almost half of these students.74 It is also quite
common for private religious schools to receive some federal funds.75
Thus, many private religious schools are governed by Section 504 but are
exempted from the ADA.76
F. Indirect applicability of Section 504 to private schools
Section 504 prohibits entities which receive federal funds, such as
public school districts, from denying students with disabilities opportunities
to participate in federally assisted programs, and specifically from
contracting with agencies which discriminate,77 or significantly assisting
agencies which discriminate.78 In many parts of the country, public schools
provide federal assistance to private schools, such as special education and
remedial instruction in secular subjects.79 OCR pursues Section 504
complaints against public school districts which provide such federally-
72
Private School Statistics at a Glance, COUNCIL FOR AM. PRIVATE EDUC.,
http://www.capenet.org/facts.html (last visited Nov. 10, 2013).
73
NAT’L CTR. FOR EDUC. STATISTICS, CHARACTERISTICS OF PRIVATE SCHOOLS IN THE UNITED STATES:
RESULTS FROM THE 2009–10 PRIVATE SCHOOL UNIVERSE STUDY (2011), http://nces.ed.gov/pubsearch/pubs
info.asp?pubid=2011339.
74
Id.
75
See Bristol Pub. Schs., 55 IDELR (LRP Publ’ns) 207, at 1003 (OCR Jan. 13, 2010).
76
See 42 U.S.C. § 12187 (2012); 28 C.F.R. § 36.102(e) (2013).
77
34 C.F.R. § 104.4(b)(1)(i) (2013).
78
Id. § 104.4(b)(1)(v).
79
See, e.g., Columbus City Sch. Dist., 53 IDELR (LRP Publ’ns) 270, at 1316 (OCR June 5, 2009)
(public school that distributed federal funds to private school under Title I (remedial secular tutoring
instruction), Title III (services for limited English proficiency students), Titles II and IV (professional
development for staff), Title V (technology assistance), and the IDEA (special education)).
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sourced assistance as to the private schools they “significantly” assist even
though the private schools do not directly receive federal funds.80
Receipt of significant state-funded or locally-funded assistance will not
trigger direct applicability of Section 504 to the private school; however, it
may trigger state or public school obligations to ensure nondiscrimination
by the private school and, thus, indirectly affect private schools.81
III. STUDENTS COVERED BY SECTION 504
Section 504 protects “qualified” persons.82 For private school students,
“qualified” means meeting the essential eligibility requirements—such as
age and entering academic credentials—for the school.83 Qualified
students must also have a past, present, or perceived disability.84
A. Applicants
Section 504 prohibits disability discrimination against applicants as
well as enrolled students.85
B. Students with a past disability
Section 504 protects students with a history of disability even if there is
no current disability.86 For example, a student who was hospitalized for
acute mental illness, but now enjoys good mental health, is protected from
80
See, e.g., Bristol Pub. Schs., 55 IDELR (LRP Publ’ns) at 1003 (complaint against school district
that provided services to private parochial school for discrimination against student with peanut allergy;
private school did not receive federal education funding and was thus not directly subject to Section
504); Newark City Schs., 110 LRP (LRP Publ’ns) 48737 (OCR Mar. 4, 2010) (complaint against school
district that provided services to private parochial school for discrimination against student; private
school did not receive federal education funding and was thus not directly subject to Section 504);
Akron Pub. Schs., 111 LRP (LRP Publ’ns) 28345 (OCR Oct. 13, 2010) (same); Boston Pub. Schs., 48
IDELR (LRP Publ’ns) 167 (OCR Nov. 28, 2006) (same); Lynnfield Pub. Schs., 108 LRP (LRP Publ’ns)
21716 (OCR Sept. 11, 2007) (same); Columbus City Sch. Dist., 53 IDELR (LRP Publ’ns) at 1317
(same).
81
See OCR Staff Memorandum, 22 IDELR 669, at 669–70 (July 27, 1990) (state-funded vouchers
used by some students to pay private school tuition does not trigger Section 504 directly but does trigger
public school obligations to ensure nondiscrimination by private school under the “minor adjustments”
standard). Cf. Milwaukee Pub. Schs., 103 LRP (LRP Publ’ns) 19640 (OCR Feb. 25, 2003) (OCR does
not have Title VI jurisdiction over private school participating in state-funded school choice program).
82
See 29 U.S.C. § 794(a) (2012).
83
34 C.F.R. § 104.3(l)(4).
84
29 U.S.C. § 705(9)(B), (20)(B) (incorporating the ADA Amendments definition at 42 U.S.C. § 12102).
85
See 29 U.S.C. § 794(b)(2)(A)–(B).
86
See 29 U.S.C. § 705(9)(B), (20)(B) (incorporating the ADA Amendments definition at 42 U.S.C.
§ 12102).
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“Minor Adjustments” and Other Not-So-Minor Obligations
311
discrimination based on that history.87 Such students would not normally
need or be entitled to affirmative adjustments but cannot be discriminated
against;88 a private school, for instance, could not reject these students
because of their mental health history.89
C. Students regarded as having a disability
Section 504 protects students regarded as having a disability even if
there is no actual disability.90 For example, a private school could not
exclude students because they live in a household with a person with AIDS
and are perceived to be HIV positive.91 Such students would not normally
need or be entitled to affirmative adjustments but cannot be discriminated
against.92
Under amendments effective in 2009, students need not be perceived as
having a disability which would qualify the student under Section 504, but
qualifying perceived disabilities do not include those that are transitory and
minor (defined as six months or less in duration, such as a broken arm).93
D. Students with a disability
1. General definition
Most importantly, Section 504 protects students who have a disability
from discrimination. ADA amendments incorporated into Section 504,
effective in 2009,94 broaden the definition of “disability” and overrule U.S.
Supreme Court decisions interpreting eligibility more narrowly.95
“Disability” is defined as: “[1] a physical or mental impairment that [2]
substantially limits96 [3] one or more major life activities97 of such
87
See id.
Dear Colleague Letter, 58 IDELR (LRP Publ’ns) 79, at 429 (Jan. 19, 2012).
89
See 29 U.S.C. § 705(9)(B), (20)(B).
90
See id. (incorporating the ADA Amendments definition at 42 U.S.C. § 12102).
91
See id.
92
Dear Colleague Letter, supra note 88, at 429.
93
See 42 U.S.C. § 12102(3)(B) (2012) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B),
(20(B)).
94
See 29 U.S.C. § 705(9)(B), (20)(B) (incorporating the ADA Amendments definition at 42 U.S.C.
§ 12102).
95
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 193–94 (2002); Sutton v. United Air
Lines, Inc., 527 U.S. 471, 478 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999);
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563–65 (1999).
96
ADA Amendments Act of 2008, Pub. L. No. 110-325, sec. 4, § 3(4), 122 Stat. 3553, 3555
(explaining the rules of construction concerning the term “substantially limits”) (incorporated into
Section 504 at 29 U.S.C. § 705(9)(B), 20(B)).
88
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individual[.]”98 James Zobrest’s hearing impairment, which substantially
limits the major life activity of hearing, certainly means he is covered by
Section 504,99 as are many other students.
2. The 2008 Amendments
The ADA Amendments Act incorporated into Section 504100 includes
statutory “rules of construction regarding the definition of disability” which
mandate broad interpretation.101 “Major life activities” are defined more
broadly and nonexhaustively under the amendments.102 The amendments
provide that mitigating measures such as medications and hearing aids—
other than eyeglasses—are not part of the analysis.103 For example, a
student with attention deficit disorder (ADD) who takes medication is
nonetheless disabled and protected from discrimination if, without the
medication, the ADD substantially limits learning or another major life
activity.104 However, if the student functions well with the medication, it
may be that the student needs no adjustments to the educational program.
The amendments also provide that conditions that are episodic or in
remission (perhaps such as a seizure disorder or fibromyalgia) are measured
based on their impact when active.105
Under this newly broadened definition, students with a wide variety of
conditions, such as multiple chemical sensitivities, HIV positive status,
diabetes, food and other allergies, asthma, ADD, and learning disabilities,
may be covered by Section 504.106
3. Conditions with limited or no protection
Certain conditions are excluded or subject to only limited protection.107
As to drug and alcohol use and addiction, acting on the basis of current
illegal drug use does not violate Section 504.108 Acting on the basis of
97
42 U.S.C § 12102(2) (defining the term “major life activities”) (incorporated into Section 504 at
29 U.S.C. § 705(9)(B), 20(B)).
98
42 U.S.C. § 12102(1)(A) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), 20(B)).
99
See id.
100
ADA Amendments Act sec. 4 (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), (20)(B)).
101
42 U.S.C. § 12102(4)(A) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), (20)(B)).
102
Id. § 12102(4)(E) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), (20)(B)).
103
Id.
104
See id.
105
Id. § 12102(4)(D) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), (20)(B)).
106
See id. § 12102(4)(E) (incorporated into Section 504 at 29 U.S.C. § 705(9)(B), 20(B)).
107
See 29 U.S.C. § 705(20)(A), (C)(v) (2012). These exceptions may apply differently as to employees. See
id.
108
Id. § 705(20)(C)(i).
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313
current illegal alcohol use may violate Section 504.109 Nondiscriminatory
discipline of students for illegal drug use or alcohol use does not violate
Section 504.110 Students who are in recovery—including students who have
successfully completed rehab or who are in rehab—and not using are
protected.111 However, drug testing or other procedures to ensure continued
sobriety for these students does not violate Section 504.112 Students who
are wrongly perceived as using are also protected.113 Statutorily excluded
conditions are: homosexuality, bisexuality, transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, or other sexual behavior disorders;
compulsive gambling, kleptomania, or pyromania; or psychoactive
substance use disorders resulting from current illegal use of drugs.114
4. State law
While beyond the scope of this Article, it is worth noting that state law
may define covered persons even more broadly.115
109
110
111
112
113
114
115
See id. § 705(20)(C)(v) (exclusion for alcohol use for employees only).
Id. § 705(20)(C)(iv).
Id. § 705(20)(C)(ii).
Id.
Id.
Id. § 705(20)(E), (F).
See, e.g., WASH. REV. CODE § 49.60.040(7) (2013). Washington state law defines disability as
any:
[S]ensory, mental or physical impairment that . . . is medically cognizable or diagnosable . . .
temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not
it limits the ability to work generally or work at a particular job or whether or not it limits
any other activity . . . .
Id. (emphasis added). An “impairment” includes, but is not limited to:
(i) 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,
genito-urinary,
hemic
and
lymphatic,
skin,
and
endocrine;
or
(ii) Any mental, developmental, traumatic, or psychological disorder, including but not
limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
Id. Thus, this state law includes temporary disabilities and mitigated conditions, even vision conditions
mitigated with eyeglasses. See id. Moreover, included conditions need not substantially limit or
otherwise impact a major life activity. See id.
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IV. SECTION 504 OBLIGATIONS TO COVERED STUDENTS
In addition to the textual statutory ban on disability discrimination,
private schools are subject to Section 504’s general process and notice
requirements,116 requirements for physical accessibility,117 and ban on
retaliation,118 as well as some of the public school regulations concerning
nondiscrimination in nonacademic activities119 and least restrictive
environment.120 Private schools also have a unique affirmative obligation to
make necessary “minor adjustments” in their programs to accommodate
student disability.121
A. Process and notice requirements
Private schools are not required to establish a formal system of IDEAlike procedural safeguards, as public schools must do.122 However, private
schools do have some process obligations. First, private schools must
designate an employee as the school’s Section 504 Coordinator.123 A recent
DOJ/OCR letter on sexual harassment emphasizes the need for appropriate
training of the school’s designated coordinator.124
Second, schools must establish an informal internal Section 504
grievance process.125 This grievance process need not resemble the formal
hearings available under the IDEA.126 However, the grievance process
must incorporate “due process standards” and provide for “prompt and
equitable resolution of complaints . . . .”127 Specifically, OCR seems to
expect:
116
See 34 C.F.R. §§ 104.7–.8 (2013) (Section 504 Coordinator, grievance process, and public notice
requirements).
117
Id. §§ 104.21–.23.
118
Id. § 104.61 (incorporating 34 C.F.R. § 100.7(e)).
119
Id. §§ 104.34(b), .37.
120
Id. § 104.34(a).
121
Id. § 104.39.
122
See id. § 104.36.
123
See id. § 104.7(a).
124
Press Release, Dep’t of Justice, Departments of Justice and Education Reach Settlement to
Address and Prevent Sexual Assault and Harassment of Students at the University of Montana in
Missoula (May 9, 2013), available at http://www.justice.gov/opa/pr/2013/May/13-crt-531.html (noting
that the letter will serve as “a blueprint for colleges and universities”).
125
34 C.F.R. § 104.7(b).
126
See id.
127
Id.
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“Minor Adjustments” and Other Not-So-Minor Obligations
315
(1) notice of where to file complaints (presumably including the name and
contact information for the school’s Section 504 Coordinator),128 the
process, and the steps required to file;
(2) notice that complaints may assert discrimination by employees,
students, or third parties;
(3) reasonable and impartial investigation of complaints;
(4) an opportunity to present witnesses and other evidence;
(5) written notice of the outcome;
(6) assurances that the school will take steps to correct problems and
prevent recurrences if appropriate;
(7) a reasonable time frame for resolving complaints; and
(8) a statement that retaliation is prohibited.129
Failure to have such a grievance procedure is itself a Section 504
violation, which may result in OCR complaints.130 Model grievance
procedures are widely available.131
Third, schools must make public notices (perhaps with a poster, and
including a policy in the student handbook and on the school website) of
nondiscrimination which includes information about the Section 504
Coordinator (with contact information) and grievance process.132
B. Physical accessibility
Buildings in existence prior to 1977 and not undergoing major
remodeling since then need not be retrofitted, but the program as a whole
must be physically accessible.133 For example, in an older building with no
elevator, a school could move classes in which a student in a wheelchair is
enrolled to the ground floor and make a ground floor restroom wheelchairaccessible.134 This school is not required to put in an elevator or make all
128
See id. § 104.8(a).
See New Lothrop Area Pub. Schs., 59 IDELR (LRP Publ’ns) 51, at 281 (OCR Mar. 9, 2012).
130
See, e.g., Palm Beach Cnty. Sch. Dist., 22 IDELR (LRP Publ’ns) 893, at 393 (OCR Apr. 5, 1995). Lack
of a grievance procedure may also result in lawsuits. See, e.g., Guckenberger v. Boston Univ., 974 F. Supp. 106,
142–44 (D. Mass. 1997).
131
See, e.g., OFFICE FOR CIVIL RIGHTS, supra note 52, at 9; Section 504 of the Rehabilitation Act of 1973,
STATE OF WASH. OFFICE OF SUPERINTENDENT OF PUB. INSTRUCTION, http://www.k12.wa.us/Equity/Families/
Section504.aspx (last visited Nov. 10, 2013).
132
34 C.F.R. § 104.8.
133
See id. § 104.22. The absence of students with mobility impairments does not excuse failure to
maintain physical accessibility. See Georgetown Cty. Sch. Dist., 61 IDELR (LRP Publ’ns) 176, at 4-7
(OCR Jan. 29, 2013) (school district which had never enrolled a student with a mobility impairment not
in compliance with physical access requirements as to future students and parents).
134
Note that carrying mobility-impaired persons up and down stairs is generally considered
129
316
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classrooms and all restrooms accessible in this older building.135 Referring
the family to other accessible schools operated by the same diocese is not
sufficient.136
Accessibility obligations include parking spaces, audio amplification in
assembly areas, and accessible playgrounds, drinking fountains, door
hardware, food service lines in the cafeteria, counters in labs, and door
thresholds.137 Weather conditions must be accounted for.138
For newer construction or major remodeling of older buildings, there
are greater requirements.139
C. Nondiscrimination on the basis of disability
Section 504's major obligation is its prohibition on disability
discrimination. The ban extends to discrimination in all aspects of a
school’s operations: admissions, academics, testing, extracurricular and
non-academic activities such as lunch and recess,140 counseling services,141
athletics,142 transportation, health services, clubs, and student
employment.143
In admissions, this likely means not requiring students to disclose
disability as part of the application process. A school could offer optional
disclosure to applicants in order to allow the school to consider diversity
that admission of a student with a disability would add, or to explain past
academic performance.144 If a disability is disclosed by an applicant, the
school must consider options for adjustments if the student were to enroll,
rather than rejecting the student out of hand.145
In counseling, schools must not steer students with disabilities toward
more restrictive career objectives.146
inappropriate.
135
See 34 C.F.R. § 104.22(b).
136
See Columbus City Sch. Dist., 53 IDELR 270, at 1315 (OCR June 5, 2009) (rejecting this
approach).
137
Lee Cnty. Sch. Dist., 38 IDELR (LRP Publ’ns) 248, at 1002 (OCR Jan. 21, 2003).
138
School Union 49, 51 IDELR (LRP Publ’ns) 113, at 586 (OCR Aug. 15, 2008) (paths on school
property must be kept clear of snow).
139
34 C.F.R. § 104.23.
140
34 C.F.R. §§ 104.34(b), 104.37(a).
141
Id. § 104.37(b).
142
Id. § 104.37(c).
143
Id. § 104.37(a).
144
See id. § 104.42(b)(4), (c) (requiring this approach for applicants to higher education programs).
145
See, e.g., Bristol Pub. Schs., 55 IDELR (LRP Publ’ns) 207, at 1003 (OCR Jan. 13, 2010) (school
must consider possible options for applicant with peanut allergy).
146
34 C.F.R. § 104.37(b).
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“Minor Adjustments” and Other Not-So-Minor Obligations
317
In physical education and athletics, equal opportunities to participate in
intramural, club, and interschool sports must be provided.147 The regulation
governing athletics applies to both public and private schools.148 In January
2013, OCR issued a letter of guidance on this issue aimed at public
schools.149 The OCR letter reminds schools of the obligation to make
reasonable modifications for athletes with disabilities.150 OCR cites as
examples of such reasonable modifications: visual cues for deaf athletes
(e.g., a visual start for a deaf runner, perhaps such as James Zobrest),
assistance getting to the mat for a blind wrestler, allowing a one-handed
swimmer to substitute a one-hand touch and other arm outstretched as
modification of a two-hand touch requirement to finish races if that did not
provide an advantage, allowing an athlete with asthma to use an inhaler, and
providing for glucose testing and insulin administration for an athlete with
diabetes.151 To the extent such modifications would be minor adjustments,
which seems likely, they would also be required for private schools.152
OCR indicates that modifications which provide an advantage to athletes
with disabilities, or which alter an essential aspect of the sport, are not
reasonable.153 Finally, OCR indicates in this letter that schools can adopt
safety and skill and performance standards for all athletes, but cannot make
decisions about athletic participation based on stereotypes.154 Athletics will
likely be an area of enforcement emphasis for OCR in the near term.155
The ban on discrimination includes freedom from harassment and
bullying based on disability. Research indicates that students with
disabilities are disproportionately the victims of bullying and harassment.156
147
Id. § 104.37(c).
See id. §§ 104.37(c), 104.39(c).
149
Letter from Seth M. Galanter, Acting Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t
of Educ. (Jan. 25, 2013), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html.
150
Id.
151
See id.
152
See 34 C.F.R. § 104.39(c).
153
Letter from Seth M. Galanter, supra note 149.
154
Id.
155
See id.
156
See generally Mark C. Weber, Disability Harassment in the Public Schools, 43 WM. & MARY L.
REV. 1079 (2002). The problem has become significant enough that OCR has issued guidance
concerning disability harassment, most recently in 2010. See Letter from Russlynn Ali, Assistant Sec’y
for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Oct. 26, 2010), http://www2.ed.gov/about/
offices/list/ocr/letters/colleague-201010.pdf; see also Letter from Norma V. Cantu, Assistant Sec’y for Civil
Rights, Office for Civil Rights, U.S. Dep’t of Educ. & Judith E. Heumann, Assistant Sec’y, Office of Special
Educ. and Rehabilitative Servs., U.S. Dep’t of Educ. (July 25, 2000), http://www2.ed.gov/print/about/offices/list/
ocr/docs/disabharassltr.html. The 2000 letter notes a “steady pace of allegations” and an increasing
number of court cases claiming disability harassment and reminds schools that harassment can amount
to a denial of FAPE. Letter from Norma V. Cantu & Judith E. Heumann, supra. It suggests some
148
318
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The ban on discrimination also includes least restrictive environment
(LRE) requirements.157 As private schools that do not provide special
education do not have self-contained special education classes or other
more restrictive placements, LRE requirements have limited
applicability.158 However, for example, it would seem to be an LRE
violation to require a student with food allergies to eat lunch by herself in a
separate room.159
In discipline, schools’ nondiscrimination obligations include not
punishing students for conduct caused by a disability.160 For example,
applying a conduct rule forbidding cursing to a private school student with
Tourette’s syndrome who has a verbal tic which involves involuntary
cursing would be illegal discrimination.161 In one case, a state court issued
a preliminary injunction against a private school which expelled a high
school senior with a bleeding disorder who cursed when she cut herself
with a knife in class.162 However, exempting a student from school
discipline policy is likely beyond the required minor adjustments, at least
where it would interfere with other students’ learning.163
Recent national data indicates that in public schools students with
disabilities are suspended at about twice the rate of other students.164 In
2010, OCR announced it would do disparate impact-based enforcement of
federal civil rights laws and initiate compliance investigations in districts,
even though no complaints have been filed.165 Discipline is one area for
system-wide steps for schools to take, including discipline of bullies and counseling of victims. Id. The
2010 letter encourages schools to look beyond discipline and counseling and to take steps to change the
hostile school climate such as training, monitoring to prevent retaliation, and perhaps offering additional
services to the victim. Letter from Russlynn Ali, supra, at 3–4. The 2010 letter also reminds schools that
some behavior that needs to be addressed under disability laws may be outside a school’s anti-bullying
policy. Id. at 1. It announces an intent to hold schools responsible for behavior that they know or should
have known about, id. at 2, a broader approach to liability than the deliberate indifference standard
courts use. See Weber, supra, at 1081–86.
157
See 34 C.F.R. § 104.34.
158
See id.
159
See id.
160
See Colon ex rel. Disen-Colon v. Colonial Intermediate Unit 20, 443 F. Supp. 2d 659, 670 (M.D. Pa.
2006).
161
Cf. id. at 670.
162
Thomas ex rel. Thomas v. Davidson Acad., 846 F. Supp. 611, 614–15, 620 (M.D. Tenn. 1994) (senior
honors student with good record).
163
See, e.g., Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 151–56 (1st Cir. 1998) (vacating preliminary
injunction ordering such a modification as beyond a “reasonable accommodation” under the ADA where
requested accommodation would prevent suspension of the student for disruptive behavior).
164
DANIEL J. LOSEN & JONATHAN GILLESPIE, CTR. FOR CIVIL RIGHTS REMEDIES, OPPORTUNITIES
SUSPENDED: THE DISPARATE IMPACT OF DISCIPLINARY EXCLUSION FROM SCHOOL, 7 (2012),
http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prisonfolder/federal-reports/upcoming-ccrr-research/losen-gillespie-opportunity-suspended-2012.pdf (using data from
OCR’s Civil Rights Data Collection).
165
See Rosa K. Hirji & Benétta Standly, The OCR as a Tool in Dismantling the School-to-Prison Pipeline,
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“Minor Adjustments” and Other Not-So-Minor Obligations
319
such reviews.166 The suspension rate in large public school districts for
students with disabilities (13%) is close to double that for general education
students (7%).167 Disparate impact in discipline will likely be an area of
emphasis for OCR in the near term.168 Schools would be well-advised to
collect and review discipline data and take appropriate steps if discipline is
disproportionately imposed on students with disabilities.169
D. Ban on retaliation
Schools are forbidden from retaliation.170 The prohibition on retaliation
is broad and extends to: filing a lawsuit (whether or not successful), making
an internal formal or informal complaint, raising concerns internally,
making an OCR complaint, testifying, advocating for persons with
disabilities, participating in an OCR investigation or proceeding, reporting
discriminatory conduct in response to questioning in an internal
investigation about another person’s complaint, or disclosing being the
victim of discriminatory behavior.171 Retaliation includes any adverse
action: discipline, adverse decisions such as honors or awards selection,
intimidation, threats, coercion, and attempted adverse actions.172
Nonprotected persons who advocate for protected persons or identify
violations are protected from retaliation.173 For example, a school may not
retaliate against an employee who advocates for a Section 504 student or
suggests the school is not meeting its Section 504 obligations.174
In April 2013, OCR issued a letter of guidance on retaliation, noting a
significant number of retaliation claims and its plan to vigorously enforce
the antiretaliation language.175 The letter mentions monetary relief as an
AMERICAN BAR ASS’N (May 23, 2011), http://apps.americanbar.org/litigation/committees/childrights/content/
articles/summer2011-OCR-school-to-prison-pipeline.html (reporting OCR’s stated intent in 2010 to initiate these
reviews in up to sixty districts, at least five of which will center on student discipline).
166
See LOSEN & GILLESPIE, supra note 164, at 6.
167
Id. at 13.
168
Hirji & Standly, supra note 165.
169
See Lynn M. Daggett, Book ‘em?: Navigating Student Privacy, Disability, and Civil Rights and School
Safety in the Context of School-Police Cooperation, 45 URB. LAW. 203, 217–24 (2013) (discussing
disproportionate discipline of students with disabilities and related recommendations for schools).
170
See 34 C.F.R. § 104.61 (2013) (incorporating Title VI requirements that include a ban on
retaliation at 34 C.F.R. § 100.7(e)).
171
See Weber v. Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000) (quoting 34 C.F.R. § 100.7(e)).
172
See id. (quoting 34 C.F.R. § 100.7(e)).
173
Cf. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171–74 (2005) (finding illegal retaliation
under Title IX, which prohibits gender discrimination, against male coach of girls’ team who protested
unequal resources for his team).
174
Letter from Seth M. Galanter, Acting Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. 2 (Apr. 24,
2013), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.pdf.
175
Id. at 1–2 (discussing retaliation claims under several federal civil rights laws including Section 504).
320
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appropriate remedy in some cases.176 Decisions made for legitimate reasons
will not constitute illegal retaliation.177
E. “Minor adjustments” to the school’s program
Section 504's many regulations include only one which is specifically
about private schools. This regulation provides that the private school’s
affirmative obligation is to make “minor adjustments” to its program.178
Specifically, private schools cannot exclude students who, with minor
adjustments, can receive an appropriate education at the school.179 This
regulation also explicitly provides that private schools may charge the
family for special services which involve substantial costs.180 Specifically,
it states that private schools cannot charge more to Section 504 students,
except when there is a “substantial increase in cost” to the private school.181
This regulation also makes explicit that certain provisions of the public
school Section 504 regulations apply to private schools.182
1. Minor adjustments
The regulation requiring private schools to make needed “minor
adjustments” to their programs183 leaves this term undefined. Moreover, it
offers no examples, factors, or other specifics.184 There appears to be no
recent commentary on point.185 Comparison with the requirements for other
176
Id. at 2.
See, e.g., Hunt v. St. Peter Sch., 963 F. Supp. 843, 854 (W.D. Mo. 1997) (rejecting retaliation
claim predicated on exclusion of student, whose mother was a strong advocate, from school because
physician concluded continued enrollment presented serious health risks).
178
34 C.F.R. § 104.39(a) (2013).
179
Id.
180
Id. § 104.39(b).
181
Id.
182
Id. § 104.39(c) (providing that 34 C.F.R. §§ 104.34, 104.37, and 104.38 apply to private schools,
while 34 C.F.R. §§ 104.35 and 104.36 apply only to private schools that provide special education).
183
Id. § 104.39(a). This regulation applies to private schools that do not provide special education,
the subject of this article. Id. § 104.39(c). There are greater obligations if the private school is a special
education school. Id.
184
Cf. id. § 104.12(b) (listing examples of reasonable accommodations for employees, including “the
provision of readers or interpreters”); id. § 104.44(a) (listing examples of academic adjustments for
higher education students, including “adaptation of the manner in which specific courses are
conducted”).
185
See generally Liekweg, supra note 50 (noting the lack of definition, guidance, and court interpretation and
suggesting four specific possible minor adjustments but not offering any analysis, instead suggesting schools do
what they can, consistent with Catholic teachings); Smith & Runyan, supra note 68 (exploring the ADA
reasonable modifications standard for private schools); Zirkel, supra note 50 (summarizing applicability of
Section 504 and the ADA to parochial schools and mentioning the minor adjustments standard).
177
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“Minor Adjustments” and Other Not-So-Minor Obligations
321
groups, examination of the limited body of case law and administrative
guidance, and understanding the context for the “minor adjustments”
requirement, are all helpful to understanding the standard.186
Conspicuously, “minor adjustments” is not used elsewhere in the
regulations and also is a different and lesser standard than the “reasonable
accommodations” required by other sections of the Section 504 regulations
for employees,187 the “academic adjustments” as “necessary” to avoid
discrimination for higher education students,188 and the “reasonable
modifications” required under Title III of the ADA.189 The “minor
adjustments” standard for private schools is of course also in marked
contrast with the IDEA-like FAPE Section 504 obligations owed to public
school students.190 In fact, OCR has noted that the “minor adjustments”
standard “differs radically from the obligations of similar public
programs.”191
One court has attempted a general definition of “minor adjustment,”
holding that “it is clear that minor adjustment is less than a reasonable
accommodation. Minor indicates a minimal burden and adjustment implies
a small correction.”192 To apply this standard, the court balanced the
burden of the requested adjustment (a mandatory scent-free environment)
on the school with the benefit to the individual.193 This court found that the
mandatory scent-free environment would be burdensome and unworkable
given the large school facility, presence of visitors and other outsiders,
small administrative staff, and difficulty of monitoring compliance.194
The “minor adjustments” standard should be interpreted in context.
Financially, Section 504 provides private schools no funding to make minor
adjustments.195 This is also the case for public schools, and those schools
have much greater and costlier affirmative Section 504 obligations.196
However, public schools receive substantial federal education funding,
186
See 34 C.F.R. § 104.39(a).
See id. § 104.12.
188
See id. § 104.44.
189
See 28 C.F.R. § 36.302(a) (2013); see also id. § 36.303 (requiring provision of certain “auxiliary
aids and services”).
190
See 34 C.F.R. § 104.33.
191
OCR Staff Memorandum, supra note 81, at 672–73 (noting private schools are not subject to 34 C.F.R.
§§ 104.32 (location and notification), .33 (FAPE), .35 (evaluation and placement), .36 (procedural safeguards)).
192
Hunt v. St. Peter Sch., 963 F. Supp. 843, 852 (W.D. Mo. 1997).
193
Id.
194
Id. at 852–53 (noting “[s]niffing may be appropriate in the wild kingdom but not in an elementary
school”). This court also suggested the burdens on the other students to forego all scents would be
undue. Id.
195
See 34 C.F.R. § 104.39.
196
See id. §§ 104.33 (FAPE), .36 (procedural safeguards).
187
322
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while private schools typically receive modest funding.197 These different
financial realities are corroborated by the private school regulation’s
explicit authorization for passing along substantial costs to the family,198
while the public schools’ FAPE obligation in the same regulations does not
mention cost,199 and in fact a free appropriate education is not limited by
cost.200
There are also large differences in expertise between public and private
schools. Public school staffs include persons with extensive curricular,
pedagogical, and assessment expertise, both administrators who specialize
in these areas and certified classroom teachers.201 Public school staffs also
include extensive special education expertise: special education teachers
and administrators, as well as related service providers such as speech
therapists and school psychologists who meet the public school’s IDEA
obligations.202 Private schools lack this employee expertise.203 In many
states, private school teachers are not required to hold state teaching
licenses.204 Private schools lack the expertise to modify curricula, provide
special education instruction, or provide related services to students with
disabilities.205
The financial and expertise context differences between private and
public schools suggest that the minor adjustments required of private
schools should be read narrowly. Specifically, the low level of federal
funding in private religious schools, coupled with the regulatory
authorization to charge families for adjustments which involve “substantial”
197
On average, federal funds make up about 10% of public school budgets. See The Federal Role in
Education, U.S. DEP’T OF EDUC., http://www2.ed.gov/about/overview/fed/role.html (last modified Feb.
13, 2012) (claiming federal share is 10.8% for 2011–12). In contrast, a private school may receive a
small amount of money for personnel development. See, e.g., Spann v. Word of Faith Christian Ctr.
Church, 589 F. Supp. 2d 759, 765 (S.D. Miss. 2008) (use of federal voucher to pay preschool tuition
triggers Section 504); Hunt, 963 F. Supp. at 849 (receipt of school lunch funds and Title I ESEA funds
triggers Section 504).
198
34 C.F.R. § 104.39(b).
199
Id. § 104.33(c).
200
Id.
201
See Lisa Küpper, Questions Often Asked by Parents about Special Education Services, NAT’L
DISSEMINATION CTR. FOR CHILDREN WITH DISABILITIES 4–5 (2009), http://nichcy.org/wp-content/uploads/
docs/lg1.pdf.
202
See id.
203
Cf., e.g., Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 9, 14 (1993) (indicating that
parents enrolled child in a private school that did not meet all legal requirements for state approval at the time,
including employing some faculty who were not state-certified).
204
See E. Vance Randall, Private Schools and State Regulation, 24 URB. LAW. 341, 352–53 (1992) (noting
that only some states require private school teachers to be certified).
205
Cf. id. at 353 (questioning whether state certifications and regulations for public school teachers actually
result in qualified teachers).
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323
costs,206 indicate minor adjustments do not include costly ones.207 Private
religious schools’ lack of expertise in special education and their lack of
staff trained and licensed to provide special education instruction or related
services suggests strongly that provision of special education instruction or
related services are well beyond minor adjustments for private schools.208
Particularly in private schools in which the teachers have not earned state
certification, modifying lesson plans, curricula, and exam formats also
seems beyond minor adjustments.
On the other hand, an individual school’s past actions with students
without disabilities may heighten obligations. “Minor adjustments” should
be understood in the context of Section 504's nondiscrimination mandate.
First, to the extent a private school makes adjustments for individual
students for nondisability reasons, the school is likely obligated as a matter
of nondiscrimination to make those same adjustments as necessary for a
student with a disability.209 For example, a private school which has given
a student a leave of absence and make-up exam to permit travel with her
family is likely obligated to provide a necessary leave of absence and makeup exam for a student with a disability (who perhaps must be hospitalized
or who is too ill to attend school).210 A private school with attendance
requirements, which it waives for students who attend school-related events
(perhaps such as Boys or Girls Nation), or for family vacations during
school days, or for athletes attending away games, is likely obligated as a
matter of nondiscrimination to waive attendance requirements to a similar
extent as necessary for a student with a disability.211 A private school
which allows students who are not yet fluent in English to have extra time
on exams or varies the format (perhaps reading the exam to the student and
recording oral responses), is likely obligated to make similar exam
adjustments as necessary for a student with a disability.212
As a corollary, the kinds of adjustments a private school makes for
students who do not have disabilities suggests what is feasible for that
school and, thus, what is likely “minor” for that school under Section 504.
Schools’ arrangements with other students provide important evidence
about what is and is not “minor” for that school.213 It seems likely that a
service provided by a school for other students is a “minor” adjustment for
206
207
208
209
210
211
212
213
34 C.F.R. §104.39(b) (2013).
See id.
See supra notes 201–05 and accompanying text.
See 34 C.F.R. § 104.39(a).
See id.
See id.
See id.
See id.
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a student with a disability.214 For example, a school might offer varied test
formats to students to allow students to show their knowledge in a format
which is a strength for a student; a student who is not good at multiple
choice, for instance, may be allowed to answer questions in an essay
format, or vice versa.215 This school’s actions appear to reflect the
feasibility of adjusting exam formats at that school, and thus make similar
adjustments required “minor” ones under Section 504.216 In contrast, a
school which never varies exam formats for individual students (perhaps
because it wants to compare all students’ performance on the same task, or
perhaps because it views modifying exam formats as imposing too big a
burden on its teachers) appears to have decided that exam format
adjustments are not feasible and such adjustments would likely not be
minor ones for that school.217 Similarly, extensive personal tutoring for a
Section 504 student would seem on its face to be more than a minor
adjustment. However, if the school already provides extensive personal
tutoring to non-Section 504 students (perhaps, for example, to some
student-athletes), it would be discrimination not to make the same tutoring
services available to the Section 504 student, and it appears that personal
tutoring is likely a “minor adjustment” for that school.218 A school which
waives academic requirements—such as achievement levels for admission
or minimum class attendance requirements—for some non-Section 504
students cannot then deny those same modifications as nonminor, essential
academic requirements to a Section 504 student.219
Examples of minor adjustments may include: “tutorial services
[voluntarily made available by a private school], extra time to take exams,
special seating arrangements, and other [noncontent] modifications[,]”220
modifications to a school’s disciplinary policy,221 snack breaks and glucose
monitoring for a student with diabetes,222 leaves of absence, time extensions
to complete a diploma or other requirements, a daily note to the parents of a
student with ADD that describes homework assignments, and a low
distraction exam environment for a student with ADD.223 While there
214
See id.
Cf. id. § 104.44(c) (requiring that postsecondary institutions make available alternative methods of
evaluating the academic achievement of a student with a handicap).
216
See id.
217
See id.
218
See id. § 104.39(a).
219
See id.
220
Benedictine Military Sch., 22 IDELR (LRP Publ’ns) 643, at 644 (OCR Jan. 13, 1995).
221
Thomas ex rel. Thomas v. Davidson Acad., 846 F. Supp 611, 618–19 (M.D. Tenn. 1994).
222
See, e.g., Springboro Cmty. City Sch. Dist., 39 IDELR (LRP Publ’ns) 41, at 1324 (OCR Feb. 24,
2003).
223
See 34 C.F.R. § 104.39(a).
215
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325
appears to be no case law on point, allowing a student’s service animal may
be required; that is explicitly required under other laws, such as Title II of
the ADA, that govern public schools and other government entities.224
Modifications to essential academic requirements of a school are not
required under the higher standard for higher education students,225 and
failure to meet essential private school requirements would render a student
not qualified under Section 504.226 Therefore, modifications to essential
academic requirements would not be required under the lesser minor
adjustments standard. Examples of nonrequired academic accommodations
would include modification of minimum GPA or core academic
requirements,227 creation of new curricula,228 or waiver of minimum
achievement levels for admission.229
Generally, special education instruction or related services will be
beyond required minor adjustments.230 However, scheduling modifications
which allow a Section 504 student to receive special education services onsite at the private school, or at the local public school,231 would appear to be
required minor adjustments. For example, if a student with a speech
disability is enrolled in a private school, the private school should be open
to scheduling arrangements which allow the student to receive speech
therapy from a private or public provider, at either the private school or the
local public school.232
224
See 28 C.F.R. § 35.104 (2013) (limiting service animals to dogs that perform tasks or interrupt
maladaptive behaviors of their humans; excluding emotional support animals). Emotional support
animals may qualify under the Fair Housing Act and the Air Carrier Access Act. Nondiscrimination on
the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56,164, 56,195 (Sept. 15,
2010) (to be codified at 28 C.F.R. pt. 35).
225
See 34 C.F.R. § 104.44(a).
226
Id. § 104.3(l); see also Ireland v. Kansas Dist. of Wesleyan Church, 21 IDELR (LRP Publ’ns) 712, at 715
(D. Kan. July 1, 1994) (explaining that a disabled student who had not achieved a daycare’s required
combination of age and developmental milestones was not otherwise qualified).
227
See Axelrod v. Phillips Acad., 46 F. Supp. 2d 72, 78, 83–87 (D. Mass. 1999) (illustrating that
under the ADA’s reasonable accommodations standard, the school was not required to waive a math
requirement for a student with ADHD, and deferring to school’s academic judgment in dismissing the
student for not putting forth sufficient effort).
228
See, e.g., Kendall Demonstration Elementary Sch., 107 LRP (LRP Publ’ns) 36725 (OCR Sept.
15, 2006) (stating that a nonpublic school for deaf students was not required to create functional
curriculum for student with lower-level intellectual functioning).
229
St. Johnsbury Acad. v. D.H., 240 F.3d 163, 165–66, 173–74 (2nd Cir. 2001) (explaining that a
school policy requiring achievement at a fifth grade level for all students did not violate Section 504).
230
See Benedictine Military Sch., 22 IDELR (LRP Publ’ns) 643, at 644 (OCR Jan. 13, 1995); Life
Christian Sch., 352 IDELR (LRP Publ’ns) 523, at 3 (OCR Dec. 24, 1987).
231
See supra Part II.B (discussing the provision of special education services by public schools to private
school students).
232
See supra notes 44–46 and accompanying text.
326
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Adjustments which impose significant burdens will not be required.
For instance, accommodations which would require additional staffing are
generally not required.233 In most cases, modifications which pose health
and safety risks will be beyond minor adjustments.234 As a corollary,
modifications which are significantly disruptive would seem beyond
required minor adjustments.235 Because of the burdens involved, one court
has held that creating a mandatory scent-free environment for a student with
asthma was not a required minor adjustment.236
As discussed in more detail immediately below, private schools may
pass on substantial charges for individual modifications to families. It thus
appears that individual modifications which involve substantial charges
which families are not willing to bear go beyond required minor
adjustments.237 However, allowing the family to make and pay for on-site
services which involve substantial charges, such as allowing a family to
have a private sign language interpreter on-site to interpret for their hearingimpaired child, would be a required minor adjustment.238 Similarly, if, as
was the case for James Zobrest, the public school was willing to fund an
interpreter, the private school should welcome the interpreter to campus.239
2. Charges for adjustments
Private schools can charge parents for services which impose a
substantial cost on the school.240 There appears to be no case law or
administrative guidance defining “substantial” costs or otherwise on
233
See, e.g., Lynnfield Pub. Schs., 108 LRP (LRP Publ’ns) 21716 (OCR Sept. 11, 2007) (stating that
a private school was not required to add a full-time nurse for a student with diabetes and required minor
adjustments included a care plan, dissemination of information, and training).
234
See St. Peter’s Child Dev. Ctr., 352 IDELR (LRP Publ’ns) 479 (OCR Aug. 24, 1987) (stating that
where the school population includes Down syndrome students particularly susceptible to hepatitis, the
admission of an asymptomatic hepatitis carrier goes beyond a required minor adjustment).
235
See, e.g., Life Christian Sch., 352 IDELR (LRP Publ’ns) at 3 (explaining that a private school that
received federal funds did not violate Section 504 by denying continued enrollment to two students with cerebral
palsy who were in wheelchairs and had limited communication skills). The school determined that these
student’s needs for special education instruction and related services were more than it could handle. Id. The
school also determined that the students’ behavior and their parents’ presence as aides were disruptive. Id. The
school’s determinations were not proven to be pretext for discrimination. Id.
236
Hunt v. St. Peter Sch., 963 F. Supp. 843, 852 (W.D. Mo. 1997) (explaining that the school’s
requested voluntary scent-free environment “more than met” the minor adjustments standard).
237
See 34 C.F.R. § 104.39(b) (2013).
238
Cf. Life Christian Sch., 352 IDELR (LRP Publ’ns) at 3. However, if the privately paid service
provider was disruptive, as the parent who served as her child’s aide was found to be in Life Christian
School, it would seem beyond a required minor adjustment. See id.
239
See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 1–2 (1993).
240
34 C.F.R. § 104.39(b).
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“Minor Adjustments” and Other Not-So-Minor Obligations
327
point.241 It seems clear that schools can pass only substantial charges on,242
such as fees for a personal tutor or aide, or a personal sign language
interpreter.243 Moreover, schools cannot use this provision to charge for
services in a discriminatory way.244 For example, a school cannot charge a
Section 504 student for tutoring services which are provided for free to
athletes or other students.245
It is also notable that this section refers to passing on costs which are
“substantial” without reference to the financial means of the school or the
burden which would be imposed if the private school absorbed these
costs.246 In contrast, reasonable accommodations for employees exclude
those that would pose an “undue” financial or administrative burden on
employers, incorporating the financial position of the specific employer247
to define what is required for employees with disabilities.248 It thus appears
that this section of the regulation creates a blanket permission for private
schools to pass on “substantial” costs to families for adjustments for a
student with a disability, even if the tuition charged is substantial, or the
private school could afford to pay the substantial cost itself, or both.249
3. Process for providing minor adjustments
As with employees and higher education students, the burden is on the
student to document the disability and request accommodations.250
Documentation should not be required for obvious, permanent disabilities
such as blindness and quadriplegia.251 As the IDEA child find obligations
of public schools extend to private school students,252 in some cases, the
241
See Zirkel, supra note 50, at 17 (agreeing that there is no interpretation or guidance on this
provision).
242
34 C.F.R. § 104.39(b).
243
See id.; see also Zobrest, 509 U.S. at 1–2 (explaining that a government-paid interpreter could assist a
student at a private school).
244
34 C.F.R. § 104.39(b).
245
See id.
246
See id.
247
See id. § 104.12(a), (c)(3) (excluding accommodations that pose an “undue hardship” as
reasonable ones and specifically listing “cost of the accommodation” as part of the undue hardship
analysis).
248
See id.
249
See supra notes 246–48 and accompanying text.
250
Axelrod v. Phillips Acad., 46 F. Supp. 2d 72, 84 (D. Mass. 1999).
251
Dear Colleague Letter, supra note 88, at 427 (indicating that “the nature of many impairments is such
that, in virtually every case, a determination in favor of disability will be made” and suggesting that schools
should not require significant documentation to determine that students with diabetes, epilepsy, bipolar disorder,
or autism have disabilities under Section 504).
252
20 U.S.C. § 1412(a)(3), (10) (2012); 34 C.F.R. § 300.131(a).
328
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public school will have evaluated the student and documented the
disability.253
Normally, the documentation of the disability will also include
recommended adjustments.254 The private school’s obligation is to use the
documentation supplied by the student and its own expertise and
information to decide on and implement required minor adjustments.255
Creation of individual plans by teams, the process required by the IDEA256
and by Section 504 for public school students,257 is not expressly required
for private schools, but is a good practice.258 Individual plans centralize
information about a student and utilize collective academic and other
expertise within the school, likely enhancing the quality of decisionmaking.259 The use of a team also facilitates consistency of decisions.260
Moreover, the expertise represented by the team may cause a court to defer
to the team’s judgment about what adjustments to make, particularly if
determining core academic requirements is involved and the team involves
significant academic expertise.261 Notably, a recent OCR complaint
involving a private school was resolved in part by agreement to convene a
committee to consider possible adjustments for a student with diabetes.262
Schools should understand, however, that failure to implement a plan is
almost per se a violation of Section 504, and so should be careful to ensure
that all plans are fully implemented.263
253
See 20 U.S.C. § 1412(a)(3), (10); 34 C.F.R. § 300.131(a).
See 34 C.F.R. § 300.311. Private schools should note, however, that many evaluators are used to
recommending services that would be part of an appropriate program for a public school student, or which would
be reasonable accommodations for an employee or higher education student, and so may recommend
modifications and services well beyond the minor adjustments a private school is capable of making.
255
See 34 C.F.R. § 104.35.
256
See id. § 300.321.
257
See id. § 104.36.
258
See id.
259
See id.
260
See id.
261
This is one reason to consider a team that includes classroom teachers and academic
administrators, or both, such as academic deans. For a discussion of deference to collective decisions
about readmission of dismissed law students with disabilities, see Lynn Daggett, Doing the Right Thing:
Disability Discrimination and Readmission of Academically Dismissed Law Students, 32 J.C. & U.L.,
505, 553–56 (2006).
262
Akron Pub. Schs., 111 LRP (LRP Publ’ns) 28345 (OCR Oct. 13, 2010).
263
Cf. Doe v. Withers, 20 IDELR (LRP Publ’ns) 422, at 423, 427 (Cir. Ct. Taylor Cnty. W.Va.
June 16, 1993) (finding teacher liable for compensatory and punitive damages for failing to implement a
student’s IEP’s provisions for testing accommodations and belittling him in front of classmates).
254
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“Minor Adjustments” and Other Not-So-Minor Obligations
329
F. Complaint options for alleged Section 504 violations
1. Internal school Section 504 grievance procedure
As discussed in Part IV.A, supra, schools are required to establish an
informal internal grievance process for Section 504 complaints. Students
who believe a school has violated Section 504 as to them (e.g., by engaging
in discrimination, by not providing requested minor adjustments, by not
meeting physical accessibility requirements, or by retaliation) may, but are
not required to, use this internal grievance process.264
2. OCR complaints
Students who allege Section 504 violations may also file complaints
with OCR.265 Doing so is not required, and may be in addition to or in
place of filing an internal grievance or a lawsuit.266 An attorney is not
required to file a complaint with OCR, and a complaint can be filed
online.267 Upon receipt of a complaint, OCR notifies the school, asks for a
response, and otherwise investigates.268 The investigation may involve an
on-site visit to the school with review of the student’s file and interviews of
school employees.269 There is no hearing.270 If OCR finds a violation,
OCR will work with the school to get voluntary compliance271 and also
issue a summary letter which is publicly available.272 OCR can refer the
case to the Department of Justice, which can bring a lawsuit.273 If there is
not voluntary compliance, OCR can also initiate a hearing process to cease
providing federal education funds to the school.274
OCR can also institute compliance reviews against a school, whether or
not a complaint has been received.275
264
See 34 C.F.R. § 104.7.
34 C.F.R. § 104.61 (incorporating id. § 100.7).
266
See U.S. Dep’t of Justice, A Guide to Disability Rights Laws, ADA.GOV, http://www.ada.gov/cguide.htm
(last updated Apr. 9, 2012).
267
See Office for Civil Rights, OCR Complaint Forms, U.S. DEP’T OF EDUC.,
http://www2.ed.gov/about/offices/list/ocr/complaintintro.html (last modified July 19, 2013).
268
34 C.F.R. § 104.61 (incorporating id. § 100.7).
269
See id. (incorporating id. § 100.7(c)).
270
See id. (incorporating id. § 100.7).
271
Id. (incorporating id. § 100.7(d)).
272
See id. (incorporating id. § 100.7(d)). Normally the name of the complaining student is redacted; the name
of school is not. See id. (incorporating id. § 100.7(e)).
273
See id. (incorporating id. § 100.8).
274
Id. (incorporating id. §§ 100.8–.9); see generally id. pt. 101 (outlining practice and procedure for hearings
to terminate federal funding).
275
Id. § 104.61 (incorporating id. § 100.6–.7).
265
330
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Finally, and as discussed earlier in Part II.F, supra, if the local school
district provides funds or services to a private school, OCR may receive a
complaint against the school district related to its obligations not to provide
assistance to entities that discriminate.276
3. Private lawsuits
Private lawsuits can be brought alleging disability discrimination.277
Remedies include compensatory damages if bad faith or “deliberate
indifference” to Section 504 rights is proven.278 Punitive damages are not
available.279 Prevailing students are also eligible for reimbursement of their
reasonable attorney’s fees by the school.280
The United States Supreme Court has held that disparate impact claims
(ones in which a neutral policy or practice disproportionately affects
members of a protected group such as a school discipline policy which
results in discipline of a disproportionate number of students with
disabilities) by private plaintiffs may not be available under some civil
rights statutes,281 but earlier found some disparate impact claims available
under Section 504.282 Whatever the situation for private Section 504
lawsuits, disparate impact-based administrative enforcement is available,283
as are disparate impact lawsuits brought by the U.S. government rather than
private plaintiffs.284 In 2010, OCR announced it would do disparate impactbased enforcement of federal civil rights laws and initiate compliance
investigations in districts even though no complaints have been filed.285
276
See id. § 104.4.
See 29 U.S.C. § 794a (2012).
278
See, e.g., M.P. ex rel. K. & D.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 867 (8th Cir. 2006).
For an overview of claims and remedies under Section 504, see generally Mark C. Weber, Procedures
and Remedies Under Section 504 and the ADA for Public School Children with Disabilities, 32 J. NAT’L
ASS’N ADMIN. L. JUDICIARY 611 (2012).
279
See Barnes v. Gorman, 536 U.S. 181, 187–88 (2002).
280
See 29 U.S.C. § 794a.
281
See Alexander v. Sandoval, 532 U.S. 275, 289–90 (2001) (finding that regulations promulgated
under Title VI, 42 U.S.C. § 2000d, a federal statute that forbids race discrimination in programs
receiving federal financial assistance, creating a private cause of action for disparate impact, are outside
of agency authority, but the U.S. government may bring such claims).
282
Alexander v. Choate, 469 U.S. 287, 299 (1985).
283
See id. at 289–90, 299; see also Press Conference Call with Arne Duncan, Sec’y, U.S. Dep’t of
Educ. & Russlynn Ali, Assistant Sec’y of Educ., Office for Civil Rights (Mar. 8, 2010), http://www2.ed.
gov/news/av/audio/2010/03/03082010.doc (discussing the intent of OCR to enforce civil rights laws on
a disparate impact basis).
284
See Sandoval, 532 U.S. at 289–90.
285
See Hirji & Standly, supra note 165.
277
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331
Where the private school and family have agreed to arbitrate disputes, a
court may enforce that agreement as to an alleged Section 504 violation.286
4. Employee discipline
While not affording a remedy to plaintiffs, an employee’s failure to
comply with Section 504 is grounds for discipline.287
V. CONCLUSION
If a student with a disability, such as James Zobrest who has a hearing
impairment, wishes to attend a private religious school such as the Catholic
high school James attended, it is likely that the school’s legal obligations
will be governed by Section 504. Section 504 imposes a ban on
discrimination and many related requirements on private schools. The
private school cannot summarily reject James’s application because he has a
disability and must not discriminate against James in any aspect of its
program, academic or nonacademic. The school must make “minor
adjustments” to its program, perhaps having a visual start cue in addition to
a starter pistol if James wants to run track, or by allowing an externally
funded sign language interpreter to come to the private school’s classes and
other activities and provide interpreter services to James. The private
school is not required to fund the interpreter itself, but may arrange with the
family to pay the private school for this service. To sort out what else
might be required “minor adjustments,” the financial and educational
expertise contexts of private schools suggest the standard is typically a low
one, but the nondiscrimination obligation suggests that a private school’s
past accommodations for its students without disabilities inform and can
broaden what is “minor” and required.
286
See, e.g., Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 156 (1st Cir. 1998) (discussing ADA and
Section 504 claims surrounding private school student’s suspension).
287
See Doe v. Withers, 20 IDELR (LRP Publ’ns) 422, at 423–25 (Cir. Ct. Taylor Cnty. W. Va. June
16, 1993). One imagines that the teacher in Doe v. Withers, who refused to make testing
accommodations despite a direct order to do so from the school’s special education coordinator, and
publicly belittled the student, would have been disciplined had he not taken a leave of absence to serve
in the West Virginia state legislature. See id.