Peter Maher has been quoted in an article that reminds school officials and Section 504 coordinators to base placement decisions on Section 504 practices, not administrative convenience. This article originally appeared in SpecialEdConnection®.

Download: Printable_download.pdf

Students with disabilities may end up in the same regular education classroom together for a variety of reasons.

A principal might recognize that one teacher has a knack for differentiating instruction. A classroom might already be set up as an allergy-sensitive room. Or a rural school may only have one class per grade.

Regardless of their intentions, school officials and 504 coordinators need to be cognizant of Section 504’s placement practices and LRE language and ensure they’re not categorically grouping students with disabilities into certain classrooms, said Peter J. Maher, a school attorney with Shipman & Goodwin LLP in the firm’s Hartford, Conn., office.

“Administrative convenience can be a subconscious factor that administrators and teams have to be careful of,” Maher said. “The key is that everything is based on an individualized approach.”

Consider these pointers:

• Watch out for classroom assignments that appear based on disability label. It may seem safer to have all third-graders with food allergies in the same classroom, but if that decision is made based on their disability label without regard to each students’ individual needs, it could violate 504, Maher said. “Even if well-intentioned, school districts should avoid the idea or the potential claim that students are grouped by a label or disability,” he said. While one teacher may have particular experience handling food allergies, it’s likely that those students could be appropriately accommodated in any general education classroom, he said. Consider training all teachers on accommodating students with food allergies, he said.

• Don’t steer students to certain classes for administrative convenience. Look out for policies or practices that steer students with disabilities to certain classes. For instance, a New Jersey district violated Section 504 and the ADA by advising students with disabilities to take Spanish rather than French or German so that staff only needed to provide necessary supports in one foreign language class. Washington Twp. (NJ) Sch. Dist.-Sewell, 48 IDELR 80 (OCR 2006).

• Be aware of any state rules regarding class composition. States may have class size and composition rules on the ratio of students with disabilities to those without disabilities in general and special ed settings. For instance, Illinois defines a general ed classroom as having no more than 30 percent special education students. “When a student’s IEP calls for services in a general education classroom, the rule requires the student to be served in a class that is at least 70 percent composed of students without IEPs,” said Melissa Taylor, director of student services for the Belleville Township High School District 201. An administrator may try to pair students with disabilities with a regular ed teacher that she knows is exceptional at providing extra supports, but the class composition shouldn’t exceed these state limits, Taylor said.

Administrators could look to their state rules under the IDEA as a guide for addressing the ratio of students covered only under Section 504 in a classroom, Maher said. Overall, when assigning students to classrooms, administrators need to “be careful of not ending up with the unintended impact or result of creating a so-called ‘regular ed’ setting with large numbers of students with disabilities,” he said.

• Remember LRE requirement. Remind teams that Section 504 has a similar requirement to the IDEA’s LRE mandate. Schools are required to educate students with disabilities with their nondisabled peers to the maximum extent appropriate to the needs of the student with the disability.34 CFR 104.34 “The idea is to be educating students alongside nondisabled peers, not like-disabled peers,” Maher said.

Consider this example from a California district that failed to provide adapted PE in the LRE to a student with a mobility impairment. The student received services in a separate class with two other students with mobility impairments rather than during the regular PE period with his nondisabled peers because of the adapted PE teacher’s schedule, not the student’s needs. See Galt (CA) Joint Elementary Sch. Dist., 20 IDELR441(OCR 1993).

Remind teams that the first option in determining placement should be the setting where the student would be if he didn’t have a disability, Maher said. From there, the team determines if the student needs any supplementary aids or services to remain in that setting alongside his nondisabled peers, he said. If the team determines the student needs more targeted supports or interventions outside a regular education setting, that’s an individualized determination based on the student’s needs, not what’s administratively convenient, Maher said.

Jennifer Herseim covers Section 504, education technology, and Common Core issues related to special education for LRP Publications.

October 30, 2017

Reprinted with permission from: Special Ed Connection®. © 2017 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. SpecialEd Connection® is your go-to source for compliance guidance and use-today solutions for all your day-to-day special education responsibilities. For FREE access or more information, please call 1-800-341-7874 or visit www.SpecialEdConnection.com. For more LRP Publications resources, visit www.shoplrp.com.