PDED 505 Special Education Legislation & Litigation

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PDED 505Special Education Legislation
Litigation

• Section 504 of the Rehabilitation Act of 1973

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Section 504

• What is Section 504?
• It is a civil rights statute enforced by the
  Office of Civil Rights (OCR)
• It prohibits recipients of federal funds from
  discriminating on the basis of disability in any
  program or activity it operates
• "No otherwise qualified individual with a
  disabilityshall solely by reason of her or his
  disability, be excluded from the participation
  in, be denied the benefits of, or be subjected to
  discrimination under any program or activity
  receiving Federal financial assistance".
• Section 504 provides the foundation for IDEA

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Section 504

• Who is eligible under Section 504?
• Section 504 protects all ages
• Section 504 protects all individuals with a
  disability 
• individuals with physical or mental impairments
  (includes mental retardation, organic syndromes,
  emotional/mental illness, learning
  disabilities)
• individuals with a record of such an impairment,
  or individuals regarded as having impairment
  (thus, Section 504 would protect individuals with
  minor impairments that do not impact one's
  abilities...for example, an individual with
  tuberculosis in remission)

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Section 504

• The disability must "substantially limit" one or
  more major life activities
• caring for self, performing manual tasks,
  walking, seeing, hearing, breathing, learning, or
  working

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Section 504

• Discrimination
• Section 504 prohibits discrimination against an
  "otherwise qualified" person with a disability

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Section 504

• What is a "qualified" individual with a
  disability?
• as related to employment an individual with
  reasonable accommodations who can perform
  essential functions of the job
• as related to education an individual (a) who is
  of the age when non-handicapped are provided such
  services, (b) who is of the age during which
  mandated under state law to provide services to
  nonhandicapped, (c) to whom state is required to
  provide FAPE under IDEA
• as related to post-secondary/vocational
  education an individual who meets academic and
  technical standards required for
  admission/participation in program
• as related to other services an individual who
  meets essential eligibility requirements for
  receipt of services

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Section 504

• Section 504 also requires that programs and
  services must be offered in the same basis
• for example equal opportunity for participation
  in nonacademic  extracurricular services and
  activities
• permission to allow service dog into building
• participation in European field trip
• play football
• people may not be excluded from or treated
  differently within a program because of a
  disabling condition
• services must be provided in facilities that are
  comparable to facilities for non-disabled
  students

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Section 504

• Denial of Physical Access
• Programs must be made readily accessible that is
  not to say that every part of a program must be
  readily accessible, but individuals with
  disabilities must be allowed equal opportunity
  for participation
• Programs must also be offered in most integrated
  settings appropriate

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Section 504

• Reasonable Accommodation
• "Section 504 by its terms does not compel
  educational institutions to disregard the
  disabilities of handicapped individuals or to
  make substantial modifications in their programs
  to allow disabled persons to participate"
• Section 504 does not require districts to
• disregard ones disability
• make substantial modifications or fundamental
  alterations
• decrease/lower standards

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Section 504

• What is a reasonable accommodation?
• "the provision of regular or special education
  and related aids and services that are designed
  to meet the individual educational needs of
  handicapped persons as adequately as the needs of
  non-handicapped persons are met
• i.e., only those measures necessary to avoid or
  eradicate discrimination on the basis of
  disability

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Section 504

• Examples of reasonable accommodations as
  determined by the courts
• Providing basic school health services
  (catheterization) to a student with physical
  disabilities that would allow presence in the
  classroom to deny this service and access to
  educational programming violates Section 504
• Allow a student with disabilities to bring
  service dog to school
• Excluding student from regular education
  classroom without first investigating and
  providing reasonable accommodations violated
  Section 504 a segregated special education
  placement should be chosen only when it is
  necessary for the student to receive educational
  benefit from that setting

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Section 504

• Examples of reasonable accommodations as
  determined by the courts (continued)
• An athletic association was required to waive age
  limitation requirements to allow a student who
  had repeated grades (because of LD) to
  participate in sports
• Modifying test taking situations (not altering
  the content of the test, but modifying the
  administration) to allow a student with
  disabilities to take a graduation competency test
  

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Section 504

• When the OCR enforces Section 504, they look for
  the following
• Equal treatment
• Equal opportunity
• Procedural compliance

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Southeastern Community College v. Davis (1979)

• Respondent, who suffers from a serious hearing
  disability, seeks to be trained as a registered
  nurse. During the 1973-1973 academic year she was
  enrolled in the College Parallel program of
  Southeastern Community College, a state
  institution that receives federal funds.
  Respondent hoped to progress to Southeasterns
  Associate Degree Nursing program, completion of
  which would make her eligible for state
  certification as a registered nurse
• On the basis of an examination at Duke University
  Medical Center, respondent was diagnosed as
  having a "bilateral, sensori-neural hearing
  loss." A change in her hearing aid was
  recommended, as a result of which it was expected
  that she would be able to detect sounds "almost
  as well as a person would who has normal
  hearing". But this improvement would not mean
  that she could discriminate among sounds
  sufficiently to understand normal spoken speech.
  Her lip-reading skills would remain necessary for
  effective communication "While wearing the
  hearing aid, she is well aware of gross sounds
  occurring in the listening environment. However,
  she can only be responsible for speech spoken to
  her, when the talker gets her attention and
  allows her to look directly at the talker".
• Southeastern next consulted Mary McRee, Executive
  Director of the North Carolina Board of Nursing.
  On the basis of the audiologists report, McRee
  recommended that respondent not be admitted to
  the nursing program. In McRees view,
  respondents hearing disability made it unsafe
  for her to practice as a nurse. In addition, it
  would be impossible for respondent to participate
  safely in the normal clinical training program,
  and those modifications that would be necessary
  to enable safe participation would prevent her
  from realizing the benefits of the program
• The questions in this case therefore are to
  determine whether the respondent is in fact,
  otherwise qualified, and secondly, whether the
  physical qualifications Southeastern demanded of
  respondent might not be necessary for
  participation in its nursing program.