Section 504 of the Rehabilitation Act of 1973

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I had a weird experience the other day that I need to share with you. A family new to the district came by to enroll their 4th grade daughter, and they stopped in to see me. I was delighted to welcome the newcomer to our happy little school. However, I was not happy to see her “best friend,” Woofy. I politely told the family that we do not allow dogs in our school, but they pushed back immediately. “Woofy,” the dad said, “is more than a dog, much more. Woofy is a service animal who provides emotional support for our daughter.”

I did my best to be polite, but Woofy was out of control, running around my office, sniffing everything in sight, and even licking my face. “Isn’t he great?” the dad asked rhetorically. “He brings such joy and comfort to our little girl.”

I admit that I am a cat person, but I am not anti-dog per se. However, I can’t imagine letting this “Woofy” creature into my school. Can I tell the family that Woofy belongs in the dog house? Please email me your answer, because the daughter is starting school tomorrow.

Thank you,
Dog Be Gone

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On May 17, 2018, the U.S. Department of Education’s Office for Civil Rights (OCR) announced the launch of a Website Accessibility Technical Assistance Initiative (the “Initiative”). As part of the Initiative, OCR will offer a series of general and personalized webinars to provide technical assistance directly to information technology (“IT”) professionals, including webmasters, who work with schools, state education agencies, libraries, colleges, and universities, to assist them in making their websites and online content more accessible to individuals with disabilities.

OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”), neither of which explicitly address accessibility to online content. Nevertheless, and despite the fact that it has not issued specific policy guidelines regarding website accessibility, OCR has taken the position that public agencies, other institutions receiving federal funds, and entities subject to Title II of ADA, whose websites do not comply with the Web Content Accessibility Guidelines (“WCAG”) and the Web Accessibility Initiative Accessible Rich Internet Applications Suite (“WAI-ARIA”), fail to comply with Section 504 and the ADA.

Subsequently, hundreds of educational institutions throughout the country have found themselves the subject of OCR investigations in response to complaints that their websites are not satisfying the requirements of these incredibly intricate guidelines. Many educational institutions have already entered into resolution agreements with OCR to resolve such complaints. These website accessibility complaints, and compliance with the resolution agreements, have placed a huge burden on the resources of both educational institutions’ and OCR alike. The announcement of the Initiative comes in tandem with OCR’s release of a new, streamlined resolution agreement (the “streamlined agreement”) designed, according to OCR representatives, to help educational institutions and OCR work together more efficiently to bring websites into compliance while providing such educational institutions with technical assistance. Recently, OCR has been allowing educational institutions who have already signed a resolution agreement the chance to switch to the streamlined agreement.


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On March 23, 2018, the U.S. Court of Appeals for the Second Circuit issued an important precedential opinion in Mr. P. & Mrs. P. v. West Hartford Board of Education, 885 F.3d 735, (2d Cir. 2018). In its decision, the Second Circuit held that the U.S. Supreme Court’s recent decision in Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), did not heighten the standard to assess whether a school district offered a student an individualized education program (“IEP”) that provided a free appropriate public education (“FAPE”) in jurisdictions covered by the Second Circuit (Connecticut, New York and Vermont).   The Second Circuit also ruled in favor of the school district, West Hartford, on all other issues, including numerous procedural claims, and rejected the parents’ request for a private transition program similar to the one offered by the district.

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Zittoun_G_WebGwen Zittoun discusses useful guidance included in the latest guide on Section 504 released by the U.S. Department of Education’s Office for Civil Rights (OCR). This article originally appeared in SpecialEdConnection®.

Download: Printable PDF

Review noteworthy scenarios from OCR’s latest guide on Section 504

For the most part, OCR’s Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, published Dec. 28, serves as a reminder to districts of their obligations to students with disabilities under Section 504.

What makes it stand out, however, is that in it OCR breaks down the basic steps of Section 504, said Gwen J. Zittoun, school attorney with Shipman & Goodwin LLP in Hartford, Conn.

“This is almost like the outline of a procedures manual,” Zittoun said. “We haven’t received anything like that from OCR in the past.”

The agency tends to favor FAQs, which can be helpful for fact-specific issues but aren’t as useful for training staff on the overall aspects of the law, Zittoun said.

In this guide, OCR explains at length the meaning of disability under Section 504 and the process for determining if a student is eligible. The guide includes comparisons between Section 504, Title II of the ADA, and the IDEA as well as important reminders, including:

  • A student with average or above-average grades can still have a disability under Section 504.
  • In determining eligibility, teams must consider other major life activities besides learning.
  • A student may be protected from discrimination even if she doesn’t need any services or accommodations through a 504 plan.
  • Schools cannot require a parent of a child with a disability to attend a field trip to care for the student.
  • Retaliation based on a parent’s advocacy for their child with disabilities is prohibited under Section 504.

To illustrate these and other points, OCR proffers 11 scenarios. Consider using these as case examples for your next staff training session. Review a sample of three scenarios districts face, edited for length and clarity, followed by expert analysis of each:

Scenario: A fourth-grade teacher notices that a student has trouble concentrating during class and takes significantly longer than most students to complete in-class assignments. The teacher doesn’t think the student needs special education services because she is earning B’s and C’s. What should the teacher do?

OCR says: “The teacher needs to inform the proper individuals in the school system that the student needs to be evaluated.”

This has been one of OCR’s frequent messages in the past several years, Zittoun said. A student’s average or even above-average grades do not disqualify him from Section 504.
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In my own little colourful worldOn December 28, 2016, the Office for Civil Rights (“OCR”) within the U.S. Department of Education released several guidance documents, including a Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (“Resource Guide to Section 504”).

The Resource Guide to Section 504 is a comprehensive overview of the obligations of public schools in complying with Section 504 of the Rehabilitation Act of 1973.  From time to time, OCR issues “Dear Colleague Letters” that provide policy interpretations on various subjects but, until recently, OCR failed to provide any comprehensive resources on the Section 504 process and school district responsibilities.  In July of 2016, OCR issued a Resource Guide regarding Students with ADHD that provided an overview of the Section 504 process using ADHD as an example. We provided earlier coverage of OCR’s ADHD guidance here. The new Resource Guide to Section 504 builds upon that guidance and provides a general overview of a variety of topics, including:

  • The meaning of disability under Section 504;
  • The provision of FAPE under Section 504, including the evaluation and reevaluation process and placement decisions;
  • Athletics and extracurricular activities;
  • Physical accessibility;
  • Unjustified different treatment;
  • Bullying and harassment, including duties to investigate and to respond promptly;
  • Dispute systems for FAPE and non-FAPE related matters, including distinct due process and grievance procedures;
  • Retaliation; and
  • Differences and overlaps with Title II of the Americans with Disabilities Act and the Individuals with Disabilities Education Act.

The guidance in the Resource Guide to Section 504 generally synthesizes existing OCR guidance from previous Dear Colleague Letters and Question and Answer guidance documents and also provides several scenarios to illustrate particular points.
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