A New Look at Section 504 and the ADA in Special Education Cases
By Mark C. Weber — May 23, 2011
School districts seem increasingly eager to decide that children are not eligible for services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400–82 (2011), and courts frequently uphold these decisions. See, e.g., Anello v. Indian River Sch. Dist., 355 F. App’x 594 (3d Cir. 2009); Brado v. Weast, 2010 WL 333760 (D. Md. 2010). If eligibility under IDEA continues to be cut back, parents of children with disabilities are likely to bring more claims for services under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (2011), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12131–50 (2011). Section 504 forbids disability discrimination by federal grantees, including local school districts; Title II forbids disability discrimination by state and local governments, again including school districts. The regulations promulgated to enforce section 504 require that all children with disabilities, as defined by section 504 and the ADA, be provided with free, appropriate public education as interpreted by the section 504 regulations. 34 C.F.R. § 104.33(a) (2011). That entitlement does not hinge on IDEA eligibility.
Section 504 and the ADA have often been viewed as supplemental causes of action in special education cases, used when a student who is also eligible for services under IDEA has a plausible claim for damages relief. The general consensus among courts is that the cause of action in IDEA does not allow claims for compensatory damages, but section 504 and Title II allow for compensatory damages in proper cases. Section 504 and the ADA remain underdeveloped as avenues of judicial relief in ordinary special education cases that do not demand compensatory damages.
This underdevelopment may end soon. At the same time that school districts are cutting back on who is protected under IDEA, a recent amendment to section 504 and the ADA has greatly expanded section 504/ADA coverage. The ADA Amendments Act, Pub. L. No. 110–325 (2008), overturns Supreme Court precedent that narrowed the coverage of the ADA and section 504. It provides that impairments are to be considered in their unmitigated state and widens the definition of major life activities set out in the statute’s coverage provision.
The special education rights conferred by section 504 and the ADA are critical to children. Regulations enforcing section 504 impose on school districts an obligation to provide appropriate education that meets the needs of those children as adequately as it does the needs of children without disabilities. Other section 504 and ADA obligations include duties not to segregate, to provide procedural protections, and to afford special rights in the student disciplinary process.
Expanded Section 504 and ADA Coverage
Section 504 and the ADA define disability as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. 29 U.S.C.A. § 705(9)(B) (2011), 34 C.F.R. § 104.3(j) (2011) (section 504); 42 U.S.C.A. § 12102(2) (2011) (ADA) Although this language sounds broad, the Supreme Court held, prior to the statutory amendment, that it should be read narrowly. The Court ruled that impairments must be evaluated after considering medical intervention or other means, including those of the body’s own automatic systems, that the individual uses to mitigate the impact of the impairments. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). It held that the “regarded as” term applies only if an entity subject to the law mistakenly believes that a person has a physical or mental impairment that substantially limits one or more major life activities or mistakenly believes that an actual impairment substantially limits one or more major life activities.The Court declared that to be substantially limited in the major life activity of performing manual tasks, an individual must be severely restricted “from doing activities that are of central importance to most people’s daily lives,” and that the impairment’s impact must be “permanent or long term.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
The ADA Amendments Act, passed in 2008 and effective January 1, 2009, explicitly disapproves these two major Supreme Court cases limiting the coverage of the ADA and, by extension, section 504. ADA Amendments Act of 2008, § 2(b)(2)–(5). It provides that the definition of disability “shall be construed in favor of broad coverage of individuals,” and declares that the intent of Congress is “that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” rather than whether the claimant’s impairment meets the definition of a disability. Further, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and the determination whether an impairment substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures,” except for ordinary eyeglasses or contact lenses.
The new statute provides a nonexclusive list of major life activities that explicitly includes sleeping, reading, concentrating, thinking, and communicating, as well as performing manual tasks, seeing, hearing, eating, walking, speaking, learning, and working.The term “major life activities” now also includes the operation of major bodily functions, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” A person meets the requirement of being regarded as having an impairment that substantially limits a major life activity if the person establishes that he or she has been subjected to a prohibited action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” All these definitional provisions apply to section 504 as well as the ADA.
With respect to public elementary and secondary students, the expansion of coverage of section 504 and the ADA in the new law is momentous. This fact is particularly true for children, who, through their own extraordinary effort, through medical and other therapies, or through supplemental devices, aids, or services, overcome whatever limits their physical or mental conditions impose on them. These children are now covered by section 504 and the ADA, as long as their impairments would substantially limit a major life activity if they were not mitigated. Moreover, the list of things that are major life activities now explicitly includes reading, concentrating, thinking, communicating, and sleeping, as well as hearing, speaking, and learning. The “operation of a major bodily function” provision is especially important in its coverage of children with serious medical conditions even when the conditions are satisfactorily treated.
Meeting Educational Needs Adequately
What are the educational entitlements of children who are covered by section 504 and the ADA? Any discussion of the rights of children with disabilities to public education begins with the standard of “appropriate education” under IDEA. In Board of Education v. Rowley, 458 U.S. 176, 200 (1982), the Supreme Court construed the duty to provide appropriate education to children with disabilities who are eligible under IDEA to mean services sufficient to provide “some educational benefit” to the eligible child. It said Congress’s intent was “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” The Court rejected a standard adopted by the lower courts that a child be provided services sufficient to maximize his or her potential commensurate with the opportunity provided children without disabilities to maximize theirs. The lower courts in Rowley had adapted that standard from the regulations applicable to elementary schools and high schools under section 504. The Rowley case did not present any claims under section 504 or the section 504 regulations themselves, so there was no occasion to investigate the rights that section 504 (and eventually the ADA) would confer on a student.
Regulations promulgated under section 504 require a recipient of federal funding that operates a public elementary or secondary education program to provide a free, appropriate public education to each child covered by section 504 in the recipient’s jurisdiction. 34 C.F.R. § 104.33(a) (2011). The section 504 regulations define appropriate education as “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements” of further regulations governing educational setting, evaluation and placement, and procedural safeguards. This regulation entails applying the standard that the lower courts used in Rowley but that the Supreme Court rejected.
Cases Interpreting the Section 504 Regulation
Two notable cases suggest that the section 504 appropriate education regulation should be interpreted and enforced exactly as written. Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008), is a damages case in which parents contended that their two daughters, both of whom had autistic conditions, were denied adequate services by public schools in Hawaii. A hearing officer found that the children were denied appropriate education in violation of IDEA and ordered prospective remedial action. The parents subsequently filed suit for damages asserting, among other claims, that the failure to provide adequate services during the period before remediation constituted a violation of section 504. The district court granted summary judgment for the school system, holding that there is no section 504 cause of action for violation of the right to appropriate education and that IDEA is the exclusive avenue for claims that fall within its scope.
The Ninth Circuit overturned the decision, ruling that IDEA is not an exclusive remedy and that the appropriate education duty under IDEA is not identical with that under section 504. The court stressed that the section 504 appropriate education standard requires “a comparison between the manner in which the needs of disabled and non-disabled children are met . . . .” Failure to offer a valid IDEA program may, but does not necessarily, violate the section 504 duty. Because the parents, like the school system, incorrectly assumed that the standards are identical and that the failure to provide appropriate education under IDEA as identified by the hearing officer necessarily supported the section 504 claim, the case had to be remanded. See, generally, Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010) (overturning a summary judgment granted to a school district on remand, upholding the claims and assigning the case to a different judge).
Lyons v. Smith, 829 F. Supp. 414, 419 (D.D.C. 1993), foreshadowed Mark H. In Lyons, the federal district court affirmed a hearing officer’s decision that a child with attention deficit hyperactivity disorder (ADHD) did not fit in the IDEA category of “other health impaired.” At the same time, it reversed the hearing officer’s decision declining to order that the child be given special education pursuant to section 504. The court declared that the child was entitled to “an education designed to meet his individual educational needs as adequately as the needs of nonhandicapped persons are met.”
Lyons is precisely parallel to the situation that is likely to become common in the wake of IDEA eligibility cutbacks and section 504/ADA coverage expansion: a claim by a non-IDEA-eligible child, not for damages relief, but rather for prospective creation and implementation of a program providing appropriate education under the section 504 standard. Lyons cautioned that section 504 does not require anything more than preventing discrimination on the basis of disability and expressed doubt that the interventions required to serve a child who is not eligible under IDEA in a nondiscriminatory manner would include special education, but it placed its emphasis on the regulation mandating that the needs of the child be met as adequately as the needs of others. In response to a request for interpretation of the duties that public schools owe students covered by section 504 but not IDEA, the Office for Civil Rights of the U.S. Department of Education stated that the section 504 appropriate education duty does not incorporate any cost or other limit as may be conveyed by a “reasonable accommodation” standard but instead that precedent imposing such a limit in some education cases applies to post-secondary institutions only. “Letter to Zirkel,” 20 Individuals with Disabilities Educ. L. Rep. 134 (1993). Thus, in the view of the Department of Education, the section 504 appropriate education duty may in fact be more exacting than the Lyons court envisioned.
A Standard Both Higher and Lower
Mark H. and Lyons establish that the section 504 appropriate education standard is enforceable when a case is brought for violation of that statute, but also that the standard it imposes on public schools is different from the IDEA appropriate education standard, perhaps lower, perhaps higher.
Or it may be both, depending on the circumstances. Thus, a wealthy school district that does exceedingly well for its students who do not have disabilities, offering them a range of instruction and activities that maximizes their educational opportunities, would be held to a high standard for children covered by section 504, a standard well above that of Rowley. For school districts that are poor or fail for other reasons to offer a decent level of services to children without disabilities, non-IDEA-eligible children with disabilities in those districts might receive services that are below some of the more generous interpretations of the IDEA standard.
Meeting the individual educational needs of a student with a disability as adequately as the needs of students without disabilities requires a potentially difficult comparison, but the task is hardly impossible. There are some levels of services for both children with disabilities and children without disabilities that educational observers consider excellent, good, fair, or poor at serving the respective students’ needs. If the children without disabilities receive excellent services in comparison to their peers nationally, then so should the children with disabilities. If services provided to children without disabilities are good, fair, or poor, the same level of quality would apply for children with disabilities.
Other Substantive Educational Obligations
Apart from the fundamental duty to provide appropriate education, as defined by the section 504 regulations, to section 504/ADA-eligible children, there are other educational obligations that have been found to inhere in section 504 and the ADA’s application to public schooling. These obligations will assume greater importance in light of the expansion of section 504/ADA eligibility. The duties include avoiding the outright or subtle exclusion of children with disabilities from school (B.T. ex rel. Mary T. v. Dep’t of Educ., 2009 WL 1978184 (D. Haw. 2009) (discriminatory age limits); Bess v. Kanawha County Bd. of Educ., 2009 WL 3062974 (S.D. W. Va. 2009) (inducing a parent to keep a child with disabilities home from school)), providing comparable noneducational benefits such as free meals (C.D. v. N.Y. City Dep’t of Educ., 2009 WL 400382 (S.D.N.Y. 2009)), providing protection against harassment and abuse on the basis of disability (Enright v. Springfield Sch. Dist., 2007 WL 4570970 (E.D. Pa. 2007)), and avoiding the segregation of children with disabilities (L.M.P. ex rel. E.P. v. Sch. Bd., 516 F. Supp. 2d 1294 (S.D. Fla. 2007)).
The section 504 regulations require public elementary and secondary education providers to afford children who need or are believed to need special education due to disability “a system of procedural safeguards that includes notice, an opportunity . . . to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure.” 34 C.F.R. § 104.36 (2011). These duties closely resemble the rights provided to children covered by IDEA.
One of the reasons school districts are reluctant to find children eligible for services under IDEA may be the districts’ unwillingness to afford the children the protections from ordinary student discipline provided by that statute. However, disciplinary protections for students with disabilities are also provided under section 504, and in some respects may be greater than those in IDEA. The grandparent of all special education discipline cases is S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981), which relied on section 504 as well as IDEA in holding that a student with a disability may not be expelled for misconduct that results from the disability itself, and that, before any proposed expulsion, “a trained and knowledgeable group of persons must determine whether the student’s misconduct bears a relationship to his” or her disability. This right to manifestation review is necessarily entailed by the duty not to discriminate on the ground of disability. As the court said, “How else would a school board know whether it is violating section 504?” The court held that complete cessation of educational services may never occur, even during a valid period of expulsion; that the burden is on the school to make the manifestation determination, even when the student does not demand it; and that expulsion is a change of placement invoking the procedural protections of section 504.
The S-1 case considered only expulsion, but its principles apply to lesser forms of discipline, such as long-term suspensions or disciplinary removals. Under the current version of IDEA, some disciplinary removals may take place regardless of whether the child’s behavior was a manifestation of the disability, and the definition of what is a manifestation of the disability is quite limited. 20 U.S.C.A. § 1415(k)(1)(E)-(G) (2011). S-1 would call into question whether school officials have such broad, unilateral authority with regard to children protected by section 504 and the ADA.
The range of remedies for denials of appropriate education under section 504 should be no smaller than that applicable to IDEA cases. In Lyons v. Smith, 829 F. Supp. 414, 419–20 (D.D.C. 1993), for example, the court overturned a decision by a hearing officer that the hearing officer lacked authority to order a placement for a child upon making a finding that the school system failed to meet the requirements of section 504. Courts have frequently approved requests for ongoing educational services, compensatory education, and tuition reimbursement in section 504 or ADA cases, although in some instances the courts have held the remedy supported by IDEA as well. See, e.g., J.T. ex rel. Harvell v. Mo. State Bd. of Educ., 2009 WL 262094, at *7 (E.D. Mo. 2009); Neena S. ex rel. Robert S. v. Sch. Dist., 2008 WL 5273546 (E.D. Pa. 2008).
The ADA specifically allows for attorney fees in administrative proceedings. 42 U.S.C.A. § 12205 (2011). The section 504 provision is not so explicit, but impliedly allows fees for necessary administrative proceedings. Section 504’s provision states, “In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 29 U.S.C.A. § 794a(b) (2011). This language is drawn from Title VII, which has been held to allow attorney fees for all administrative proceedings that must be pursued to present a claim in court. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 71 (1980).
Expert Witness Fees
The ADA fees provision explicitly includes “litigation expenses, and costs,” 42 U.S.C.A. § 12205 (2011), which would appear to cover the charges that parents frequently need to pay to expert witnesses in disputes over special education programs. Although the Supreme Court has ruled that IDEA’s fees provision does not extend to expert witness fees (Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 297–98 (2006)), at least one court has ruled that the section 504 fees provision should be read to cover these charges. L.T. ex rel. B.T. v. Mansfield Twp. Sch. Dist., 2009 WL 2488181 (D.N.J. 2009).
As more parents turn to section 504 and the ADA in special education cases, courts will need to confront questions of appropriate education, procedural protections, defenses, and remedies under those laws as distinct from IDEA. The courts should be guided by a straightforward reading of the statutes and regulations. If courts give the relevant provisions their natural reading, they will provide the protection that Congress intended to give schoolchildren with disabilities when it enacted those laws.
Keywords: litigation, children’s rights, Individuals with Disabilities Education Act, Rehabilitation Act of 1973, Americans with Disabilities Act
Mark C. Weber is Vincent de Paul Professor of Law at DePaul University, author of Special Education Law and Litigation Treatise (LRP 3d ed. 2008 & supps.) and coauthor of Special Education Law Cases and Materials (Lexis-Nexis 3d ed. 2010).