Overview of §504 of the Rehabilitation Act of 1973
Questions & Answers
by
Jose L. Martín, Attorney at Law
Richards Lindsay & Martín, L.L.P.
1. What is §504?
The Rehabilitation Act of 1973 (§504) is a one-sentence civil rights law (passed under the
Nixon administration) that prohibits agencies that receive federal funding from
discriminating against persons with disabilities on the basis of disability. There are also
several federal regulations, passed by the DOE, that specifically tell schools how to
implement §504 requirements.
2. What exactly does §504 say?
“No otherwise qualified individual with handicaps in the United States…shall, solely by
reason of his or her handicap, be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal financial
assistance…” 29 U.S.C. §794(a).
3. What is the purpose of §504?
The main emphasis in the schools is equal education opportunity, which is mainly
accomplished by providing appropriate classroom accommodations to eligible disabled
students. §504 also requires that eligible students are afforded an equal opportunity to
participate in school extracurricular and nonacademic activities.
4. Who is disabled under §504?
Any student with (1) a physical or mental impairment (2) that substantially limits learning or
another major life activity (breathing, seeing, hearing, walking, working, performing manual
tasks, etc.).
5. What is IDEA?
The Individuals with Disabilities Education Act (IDEA, 20 U.S.C. §1400), is the federal
special education statute. It applies only to about 14% of the student population, since it
focuses on students with more severe disabilities and needs. IDEA has stricter and more
specific requirements than §504, which offers more general non-discrimination protections.
6. Why is there a need for two statutes addressing educational rights of
students with disabilities?
IDEA is the funding statute that helps provide resources for the education of the more
seriously disabled students. It focuses its resources fairly specifically to a subset of disabled
persons. Section 504, however, is a broader, unfunded, non-discrimination civil rights law
emphasizing equal opportunity in any program receiving federal funding.
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Section 504 Q&A June 2005
7. Is every special education student §504 eligible?
The basic non-discrimination protections of §504 technically apply to special education
students also.
8. What is the §504 process?
The §504 process is the same as IDEA in its basic format (child-find, identification,
evaluation, committee decision-making, individualized service plans, and periodic reviews),
but the steps tend to be more basic.
9. What is the modern role of §504 in the public schools?
§504 is a vehicle through which schools provide necessary accommodations to students with
disabilities that are not severe enough to qualify them for special education, but which
nevertheless are substantially limiting their learning or other major life activities.
10. In the big picture, what does §504 require of schools?
(1) Provisions for eligible students (meaning evaluating students, considering them for
eligibility in the §504 committee process, developing individualized accommodation plans,
implementing the plans, and providing period reviews), (2) non-discrimination in nonacademic and extracurricular programs and activities, and (3) compliance with §504
procedural requirements (notices, access to relevant records, opportunity for impartial due
process hearings, and a review process).
11. What is a §504 committee?
A group of persons (3 or more) that includes persons knowledgeable about the child, the
meaning of the evaluation data, and the placement and accommodation options constitutes
the §504 committee. This committee interprets the evaluation data, determines eligibility,
develops and periodically revises accommodation plans.
12. What is a FAPE under §504, as opposed to FAPE under IDEA?
Under §504, a FAPE is the provision of services, such as accommodations, designed to meet
the educational needs of the disabled student as adequately as the needs of non-disabled
students are met.
13. Why does §504 address non-educational issues such as nonacademic
services an extracurricular activities?
Because of the non-discrimination nature of the law, this focuses on equality of opportunity.
Congress wanted to ensure that students have an equal opportunity to participate in all school
programs, not just the educational ones.
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14. What is an “evaluation” under §504?
The collecting, gathering, and interpreting of data from a variety of sources about the
student’s educational functioning constitutes an evaluation. Data can include aptitude and
achievement tests, teacher recommendations, physical and health information, adaptive
behavior data, discipline information, parent input, privately-obtained information, prior
IDEA evaluations, grades and progress reports, and other relevant information: a holistic
evaluation.
15. After evaluation, could a §504 committee decide that the student is so
impaired that he should be referred for an IDEA evaluation?
Yes, either upon initial evaluation, or after attempts to educate the student with a §504 plan,
the §504 committee may refer the student for a special education evaluation.
16. What is meant by the phrase “substantial limitation”?
Generally, it means that the disability materially and significantly impacts the student’s
overall educational performance and experience in an adverse manner. In other words, it
means the student is experiencing serious difficulty meeting minimum academic
requirements, behavioral expectations, or a combination of both. It does not mean that the
student is not working up to his/her potential or earning the best grades he/she can earn.
17. Is a student who is dismissed from special education eligible under §504?
Not automatically. Such a student should be referred to a §504 committee for evaluation and
a determination of eligibility. It will be up to the committee whether the student qualifies for
eligibility under §504.
18. Can a student be disabled but not qualify under §504?
Yes, since some disabled students may not be substantially limited in learning or another
major life activity by their disability. If a student with disabilities is able to function
adequately in the school setting, they may not be substantially limited, and thus, not eligible
under §504.
19. What are the notice requirements under §504?
There must be continuing steps to notify disabled persons that the school does not
discriminate on the basis of disability. Additionally, disabled students and their parents must
be notified of the school’s legal duties under §504, as well as their rights under the law.
Finally, schools must notify disabled students and their parents prior to taking action
regarding the identification, evaluation, or placement of a student with a disability (i.e.,
notice of all §504 committee meetings and evaluations).
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20. What can happen to a school that does not comply with §504?
Failure to maintain and implement §504 policies and procedures can result in complain
investigations, compliance reviews, and enforcement proceedings by the Office for Civil
Rights (OCR). Ultimately, OCR has the power to terminate a school’s federal funding.
Aside from federal agency monitoring, parents can file due process hearing requests and
initiate court proceedings.
21. When OCR investigates a school, does it review educational decisions?
Generally, no. Rather, OCR primarily focuses on whether a school maintains and
implements the basic §504 procedures in reaching its determinations. If so, OCR will not
generally second-guess the educational decisions made by school staff.
22. What is a §504 hearing?
The main procedural safeguard under §504 is the parents’ right to an impartial due process
hearing to contest any action or lack of action of the §504 committee.
23. Do §504 students have protection in disciplinary matters similar to those
under IDEA?
Yes, disabled students under §504 cannot be discriminated against on the basis of disability
in the school disciplinary process. Therefore, §504 students have protections against patterns
of disciplinary removals, as well as the manifestation determination procedure. That
procedure requires that §504 committees determine whether the student’s behavior was
related to his/her disability in situations where the student faces a disciplinary removal that
would amount to a change in placement (i.e., removal of longer than 10 consecutive school
days).
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What Is “Substantial Limitation?”
by
David M. Richards, Attorney at Law
Richards Lindsay & Martín, L.L.P.
 What does “substantial limitation” mean?
“The statutory language requiring substantial limitation of a major life activity emphasizes
that the impairment must be a significant one.” Deas v. River West, 152 F.3d 471 (5th Cur.
1998). Thus, the impairment must not limit or affect, but must substantially limit a major life
activity. Waldrip, supra. Put differently, the impairment “must result in a severe restriction
on a major life activity, not just a slight or partial limitation.” Henson v. Bell Helicopter,
2004 U.S.Dist. LEXIS 1630 (N.D. Tex. 2004). The phrase suggests “considerable” or “to a
large degree.” Sutton v. United Air Lines, 119 S.Ct. 2139, (1999).
The regulations developed pursuant to the Americans with Disabilities act provide some
additional fine-tuning on the substantial limitation issue. Uder the ADA regulations adopted
by the Equal Employment Opportunity Commission (EEOC), “substantially limits” means:
“Unable to perform a major life activity that the average person in the general
population can perform;” 29 C.F.R. §1630.2(j).(1)(i). EXAMPLE: An individual with
paralyzed legs is substantially limited in major life activity of walking since his impairment
makes him unable to walk (unable to perform the major life activity of walking)
“Significantly restricted as to the condition, manner or duration under which an
individual can perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general population can perform
that same major life activity.” 29 C.F.R. §1630.2(j).(1)(ii). EXAMPLE: A person is only
able to walk for a brief period of time or the person falls every few steps.
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