Core Concepts of Section 504 in the Rehabilitation Act of 1973

The Rehabilitation Act of 1973 How did it come about, and what was intended (and more importantly, what was not intended)?

The Rules Brown v. Board of Education, 347 U.S. 483 (1954); precursor to special education legislation. Court determined that it was illegal to arbitrarily discriminate against any group of people and applied this principle to the schooling of children, holding that a separate education for African American students is not an equal education. Students with disabilities used Brown as precedent to argue that their segregation and exclusion from school violated their opportunity for an equal education under Equal Protection clause of U.S. Constitution. Exclusion, isolation, segregation of disabled students “Five to one, one in five” 1 million not educated 3.5 million “warehoused”

The Rules The 1960’s Civil Rights Movement gave birth to the Disability Rights Movement. Senator Hubert Humphrey, who had a grandchild with Down Syndrome, spearheaded an attempt in 1964 to include the disabled in the Civil Rights Act. The first legislation passed — Rehabilitation Act of 1973. Relevant language was enacted almost unnoticed in the larger legislation, and was never discussed in bitter debates; it may have been inserted by congressional staffers. It took seven years, which included conflicting court rulings and a sit-in of disabled individuals, to secure regulations.

The Rules Rehabilitation Act of 1973 Title 29; United States Code Section 701 Civil rights protection; not funding law Federal programs — no discrimination re: disabilities. Rehabilitation Act required parents to bring suit in court. First time people with disabilities are considered a minority group, given “class status;” critical in the development of future disability laws. “No otherwise-qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, 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. . .”

The Rules Board of Education v. Rowley, 458 U.S. 176 (1982) established two-prong inquiry regarding the FAPE claim: Has the state complied with the procedures in the act? Is the IEP reasonably calculated to enable the child to receive educational benefits? Process is just process!! PG v. City Sch. Dist. Of New York, 2015 WL 787008 (S.D.N.Y. Feb. 2015) “All that is required is a parent’s participation, not that they have the final word.” Professional disagreement regarding programming does not amount to FAPE violation. IDEA permits draft IEP formulation and discussion pre-meeting; changes and decisions occur at the table with proper notice and participation.

The Rules After a series of court decisions in the 1980s not favorable to disabled individuals, the Americans with Disabilities Act (ADA) was introduced to the Senate in 1989. ADA is a civil rights law which prohibits discrimination solely on the basis of disability in employment, public services and accommodations. Application to BOTH public and private entities. “Title II” applies to schools. Americans with Disabilities Act; 42 USC Section 12000, et seq. ADA tracks Section 504 and provides that the remedies, procedures and rights under the ADA are the same as under the Rehabilitation Act.

The Rules Identical application to public schools. Subchapter II, Part A, of the ADA at 42 U. S. C. § 12132 and § 12133 states: Section 12132. Discrimination Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Section. 12133. Enforcement The remedies, procedures, and rights set forth in section 794a of title 29 (Section 504) shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

Core Concepts in 504 Webinar Series Have questions about Section 504? Stay tuned for the next webinar: Understanding the Section 504 Eligibility Criteria