Showing posts with label §504. Show all posts
Showing posts with label §504. Show all posts

Breaking: New DOE Guidance On Equal Access to Extra-Curricular Sports Activities

Seal of the United States Department of Education
Seal of the United States Department of Education (Photo credit: Wikipedia)


















On Friday, the Office for Civil Rights of the U S Department of Education issued a Dear Colleague Letter providing guidance on the responsibility of school districts to provide equal access for children with disabilities to extra-curricular sports activities. 

You can read the letter clarifying student's rights under §504 here. A blog post by Secretary Duncan, a former professional basketball player, may be reviewed here. The action was prompted by a June 2010 study by the Government Accountability Office concerning obstacles to participation in sports by children with disabilities.  The GAO report is available here.

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Is FAPE Under § 504 FAPE Lite?

An attempt at a discrimination graphic.Image via Wikipedia
Regular readers will remember a previous post in which I referred to special education and FAPE under § 504 as the redheaded stepchild of IDEA.  This, of course, lead to subsequent apologies to both stepchildren and redheads...

But I digress.  Most special education stakeholders tend to think of the right to FAPE under §504 as providing less protection than the right to FAPE under IDEA.  Once again, we use the same term or acronym in multiple ways. Some even accuse lawyers of intentionally employing this practice for purposes of job security.  I believe, however, that the reason is less sinister.  We're too lazy to make a new word or acronym when we have a similar one already.  The confusion and head-shaking is merely an unintended consequence.

In most cases § 504 does provide less protection that IDEA.  § 504 is a non-discrimination statute.  The federal regulations under that statute require that educational services for disabled children meet their needs as well as the needs of non-disabled children are met.34 C.F.R. §104.33.

This brings me to an argument made by Professor Mark Weber, my friend and a great friend of this blog.  Mark is one of the big idea guys in special education.  He wrote last year in an article published in the Texas Journal of Civil Liberties and Civil Rights, (Vol. 16, No. 1  Fall 2010) p.  1 - 28, that for poorer and lower achieving schools, the IDEA standard of FAPE is higher.  For the more wealthy, suburban school districts where children without disabilities do very well, perhaps the § 504 FAPE comparative standard requires even more than IDEA FAPE.

This is an intriguing argument.  It makes sense as an academic application of the legal principles.  As I have discussed with Mark, however, it is a tough argument from a public policy standpoint.  Can it really be argued, especially given the current economic climate, that rich kids with disabilities are entitled to more than their poorer counterparts?  I cannot imagine a court ever saying that out loud.  

What do you think of this argument? Is the FAPE standard under § 504 variable?




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Big Changes to §504: Do They Affect Special Education - Postscript Part III

International Day of Persons with DisabilitiesImage by City of Edmonton via Flickr


We recently finished a popular series on the recent changes to ╘504 as a result of the ADA amendments.  There was a lot of material and we have received a lot of favorable comments.  Thanks for reading and being interested.  


We often get great comments and emails concerning  our posts and this series was no exception.  Here is an example of a thoughtful comment by our new friend Jo Anne Simon:


Dear Jim:

I have to agree with Art Cernosia. I also agree with Professor Weber's prediction that §504 will be seeing more action because of the IDEA eligibility tightening. 

The sad truth is that public schools have long seen §504 and IDEA as the same thing and indeed the federal regulatory scheme for P-12 is similar to that of IDEA and often permitted the application  of similar eligibility criteria - even though they were never meant to be precisely the same.  §504 was always meant to cover a broader swath of children with disabilities, including those who needed less in the way of "special education" but more in the way of accommodations.  Just to confuse things, the IDEA and §504 shared terminology with some of the services/interventions that would not be required under 504, such as certain therapies.

The exhaustion requirement is also a significant barrier to a pure §504 claim.  However, a pure §504 claim does have its place.  For example, §504 would permit a claim against a physically inaccessible school environment.  That's not within the purview of impartial hearing officers to remedy.  Similarly, retaliation claims can proceed under §504.  Moreover, as more and more school systems declassify children for IDEA purposes and opt to serve them under §504 instead, those schools will be hard pressed to claim a failure to exhaust administrative remedies of a law by which the schools just said these children were not protected.  One can only talk from both sides of one’s mouth for so long...

Jo Anne
 
So what do you think?
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Big Changes to §504: Do They Affect Special Education - Postscript Part II

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Our recent  series on § 504 and special education examined the recent changes in the Americans with Disabilities Act, which automatically change provisions of §504. These changes were mentioned by multiple speakers on my summer rock tour for special education law.

One person who I asked about this was my buddy and mentor Art Cernosia.  Art and I grew up about ten miles from each other in Chicago, but we didn't meet until he was in Vermont and I was in West Virginia. He is now one of the national authorities on special ed law.  I wondered what he thought of Professor Webber's prediction that 504 would be seeing more action because of the IDEA eligibility tightening.

Art said that he thought that   § 504 would not see much of an increase in activity.  He believes that the anti-discrimination nature of the 504 FAPE requirement would be  less attractive still to parents than the more fully defined IDEA FAPE requirement.

Also, he pointed out that  the exhaustion requirement is being applied increasingly by the courts to §504 actions.  In other words, courts are requiring parents who file 504 suits to first exhaust their administrative remedies by pursuing a due process hearing under IDEA with the state education  before proceeding to court. This exhaustion requirement, he feels, will make it likely that parents will continue to file both IDEA and 504 claims together rather than 504 in lieu of IDEA.
§504 is very quickly becoming a hot button issue.   

So what do you think will §504 replace IDEA as the special education law of choice?
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Big Changes to §504: Do They Affect Special Education - Postscript Part I

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I am constantly amazed by the number of high quality readers this blog attracts. Thank you - to all of you.

One such reader is Jo Anne Simon, a lawyer and professor, who advocates on behalf of parents of kids with disabilities. She recently shared with me her testimony before Congress when they were considering the ADA amendments (which also changed the eligibility requirements for §504.

She contacted me about the recent series on the changes to §504 and what they mean for the education of children with disabilities. She has some well articulated opinions.

Here is a portion of her testimony before Congress:

"Concerns that the ADAAA will compel schools to provide services to students who don’t really need them are misplaced. Whether a student has a disability and what, if any, services he needs are two distinct issues. Take the hypothetical child with Attention Deficit Hyperactivity Disorder whose medication fully corrects the symptoms of his disorder. That is actually unlikely to be the case since medication does not improve deficits in working memory, processing speed, lexical access or executive functioning. However, even if medication had a completely corrective effect, that child would still be protected from discrimination based on his disability. Protection from discrimination, however, only requires the provision of services where there is a demonstrated need for those services. The ADA does not require needless service provision. The greater danger, of course, is that a child entitled to protection and perhaps in need of services, will not get them, and will not have the opportunity to learn what he could and should be learning."

You can review her comments in their entirety here.

As with anything in special education law, there are lots of viewpoints. In the next post in this postscript series, I will share some more reaction to the first posts in the series. Stay tuned.

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New Poll - Will the Changes to §504 Make Parents Turn Away From IDEA?

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Big news, we have a new poll!

For those of you who regularly read this blog, you know that we occasionally ask you to venture over to the lefthand side of the blog and weigh in on a pending issue in special education law. First a cautionary note, these polls are not "scientific" in nature. They are a toll by which we gauge the feelings of readers, but all polls of this nature lack the random sample which social scientists say make any poll reliable. Moreover, we here at this blog are not experts on wording bias; in fact, we cannot resist the act of placing our tongues in our cheeks. So please do not quote the results of our polls as though they are scientific fact.

Despite all the disclaimers above, these polls can be fun. So we run them occasionally.

The current topic is will the changes to §504 make parents turn away from IDEA. We have been running a series on the changes to §504 and what they mean for the education of kids with disabilities. There are a few more posts coming about some reactions to the series. You may vote now or later, but please exercise the franchise! Be heard. Voting is open until December 19th.
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Big Changes to §504: Do They Affect Special Education - Part I

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As my summer rock tour on special education law continues, one theme is emerging: there have been big changes to §504 (through the ADA amendments by Congress.) The big question is how much these changes will affect the education of kids with disabilities.

At least three speakers, and many of the hallway conversations, during these conferences have directly addressed the changes to §504. One frequently heard comment is that the main dissatisfaction of the Congress with decisions involving §504 and the ADA in the employment context. Congress felt that the U. S. Supreme Court was interpreting the laws too narrowly and blocking many employees from going to court to be heard on the question of reasonableness of accommodations that they were requesting.

In particular Congress took issue with two lines of cases by the Supreme Court. One involved cases following Sutton v. United Airlines 527 US 471, 30 IDELR 681 (1999). Another involved cases following Toyota Manufacturing v. Williams 534 U.S. 184, 102 LRP 6137 (2002).

In the next part in this series, we will look at these cases and why Congress was upset.
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