Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools

Additional Protections from Discrimination

Public school students with disabilities have the right to be free from discrimination based on disability; are entitled to an equal opportunity regardless of disability; and have the right to aids, benefits, or services, equal to and as effective as those provided to students without disabilities.¹¹⁵

In some situations, providing an equal opportunity (that is, providing aids, benefits, or services that are as effective as those provided to others) requires different treatment for a student with a disability. For example, if all students are provided with hard copy textbooks, a student who is blind would need the textbooks in a different format (for example, Braille, large print, or an accessible electronic format) in order to have equal access to the information in the textbook. The special education and/or related aids and services provided to students under Section 504 FAPE is another example.

Students with disabilities must be provided different or separate aid, benefits, or services, however, only when it is necessary so that the aid, benefits, or services are as effective as those provided to others.¹¹⁶ For aid, benefits, or services to be equally effective, public school students with disabilities must be afforded an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement in the most integrated setting appropriate to a particular student’s needs.¹¹⁷

For example, a school district’s bus transportation schedule that requires a 20 minute early departure for administrative convenience (rather than, for example, possible health- or education-related reasons) for students with disabilities who need a wheelchair-accessible bus, but does not impose a similar early departure requirement on other students who take a bus, would result in discrimination in violation of Section 504.¹¹⁸ In this example, the school, by unnecessarily requiring students with certain mobility disabilities to leave class 20 minutes early every day, would unlawfully limit the opportunities that the students with disabilities have, relative to their non-disabled peers, to participate in or benefit from educational services at the school.

In addition, the school’s blanket practice would raise FAPE concerns because the practice applies to all students with certain mobility disabilities without considering each student with a mobility disability’s individual needs.¹¹⁹ Instead, the policy is based on the bus transportation schedule and administrative convenience. Unless the school makes an individual determination through the FAPE process that a student with a disability requires a shortened school day to receive FAPE, students with disabilities are entitled to an entire school day that is as long as the school day for students without disabilities.

Similarly, if a school repeatedly sends a student with a disability home early, in response to her disruptive behavior in class, but does not do so for her non-disabled peers who engage in similar behavior, the different treatment would be unlawful.¹²⁰ This fact scenario would also raise FAPE concerns if the student is not able to receive the services outlined in her IEP or Section 504 plan because she is repeatedly sent home early. This determination would have to be made on a case-by-case basis depending on the particular facts and circumstances.

Scenario 9 – Unjustified Different Treatment

Ricardo has a peanut allergy. His fourth-grade class is going on a field trip to the local aquarium and Ricardo’s father is told that he must chaperone Ricardo on the trip because the teachers will be very busy and cannot ensure that Ricardo will be protected from exposure to peanuts or peanut products while on the trip, especially during the lunch break. Ricardo’s father cannot go on the field trip because he has to go to work. As a result the teachers tell Ricardo he cannot attend the field trip. Ricardo’s father complains to the principal, noting that no other parent is required to attend the field trip. Should the school have required Ricardo’s father to attend the field trip?

No. In this case, none of the parents of students without disabilities were told that they must attend the field trip; therefore, the school may not require Ricardo’s father’s attendance simply because Ricardo has a disability. Under Section 504, the school is responsible for making it possible for Ricardo to participate in this learning opportunity like his peers, without parental assistance.

Bullying and Harassment

Section 504 prohibits disability-based harassment by peers that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the school’s education programs and activities (in other words, creates a hostile environment).¹²¹ When a school district knows or reasonably should know of possible disability-based harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred.¹²² If an investigation reveals that the harassment created a hostile environment, the recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent the harassment from recurring, and, as appropriate, remedy its effects. ¹²³

Bullying and harassment¹²⁴ of a student by his or her peers, based on disability, may deny a student equal educational opportunities.¹²⁵ Note, however, that the label used to describe an incident (for example, bullying, hazing, teasing) does not determine how a school is obligated to respond. Rather, the nature of the conduct itself must be assessed for civil rights implications.¹²⁶

Harassment of a student by another student (peer-on-peer) on the basis of his or her disability may take many forms, such as a student remarking out loud to other students during class that a student with dyslexia is retarded or dumb and does not belong in the class, or students repeatedly placing classroom furniture or other objects in the path of a classmate who uses a wheelchair, impeding the classmate’s ability to enter the classroom. Note that harassment does not have to include intent to harm, be directed at a specific targeted student, or involve repeated incidents in order for it to be considered discriminatory.  

A school is responsible for promptly and effectively addressing harassment about which it knows, or reasonably should have known.¹²⁷ In some situations, harassment may be in plain sight, widespread, or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, during lunch, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of a single incident of misconduct that triggers an investigation that could lead to the discovery of additional incidents that, taken together, may contribute to the creation of a hostile environment. In all cases, schools must provide notice of their policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.¹²⁸

For example, any separation of the targeted student from an alleged harasser should be designed to minimize the burden on the targeted student’s educational program (for example, not requiring the targeted student to change his or her class schedule). In addition, depending on the extent of the harassment, the school may need to provide training or other interventions not only for the perpetrators, but also for the larger school community, to ensure that all students, their families, and school staff can recognize harassment if it recurs and know how to respond.¹²⁹

Schools also have responsibilities under Section 504’s FAPE requirements when a student with a disability is harassed or bullied on any basis (for example, bullied based on disability, or national origin, or homelessness, or appearance). This is because the bullying or harassment can result in a denial of FAPE under Section 504 and, if that occurs, it must be remedied. FAPE may be denied to a student when, for example, the effects of the bullying include adverse changes in the student’s academic performance or behavior.¹³⁰

If the school has reason to suspect the student’s needs have changed, the Section 504 team must determine the extent to which additional or different services are needed,¹³¹ ensure that any needed changes are made promptly, and safeguard against putting the onus on the student with the disability to avoid or handle the bullying.

Disputes and Disagreements Regarding FAPE and non-FAPE Matters

Conflicts between parents and school personnel about Section 504 issues may be resolved through due process or through the school district’s established grievance procedures.

Examples of the types of complaints that are appropriately resolved through due process include: whether a student has a disability and is eligible for special education and or related services; whether a student with a disability requires further evaluation in order to devise an appropriate plan of services; or whether the scope of the evaluation or the current services is sufficient to meet the student’s individual educational needs.

On the other hand, parents and others (for example, advocacy organizations) can attempt to resolve a range of other types of complaints, for example, complaints regarding disability-based harassment, different treatment, or a lack of accessible facilities or programs, through a district’s grievance procedure.¹³³

Note, a school district cannot satisfy the requirement to have due process procedures by relying on its grievance procedure, nor can a district require a parent to pursue a FAPE-related complaint through the grievance procedure before a hearing under the system of procedural safeguards will be granted. Districts must ensure that they have due process procedures that are available to parents, as required.¹³⁴

Procedural Safeguards.

Under Section 504, school districts are required to develop and implement a system of procedural safeguards to address FAPE concerns specifically, such as the identification, evaluation, and educational placement of students with disabilities.¹³⁵

Procedural safeguards include notice; an opportunity for records review by parents or guardians; an impartial due process hearing, with an opportunity for participation by the student’s parents or guardian and representation by counsel; and a review procedure.

Examples of relevant records could include: evaluation reports, report cards, a Section 504 plan, discipline records, and health records. Schools can provide parents with access to relevant records by, for example, providing copies of the records or allowing parents to review the records at the school and make copies.¹³⁷

Scenario 10 – Procedural Safeguards

Ms. Lee told staff at her son’s school that she believes her son has a disability because he cannot seem to sit still and concentrate on his assignments. Although Ms. Lee has made multiple requests, the school has refused to evaluate him because the teachers do not believe the student has a disability. Ms. Lee does not receive any communication from the school about why they will not evaluate her son. Is the school’s approach permissible?

No, a school cannot simply ignore a parent’s request for his or her child to be evaluated, even if the school does not believe that the student has a disability. A school district is required to establish, implement, and inform parents about a system of procedural safeguards that are designed to help resolve FAPE-related disagreements regarding identification, evaluation, or educational placement of a student. As part of this system, a school must notify parents of any evaluation or placement actions and inform parents of their right to: (i) examine records or documents that the school relied on in making its decision about the student; (ii) request an impartial hearing that provides the parent with an opportunity to participate and permits representation by an attorney; and (iii) have an opportunity for review of the decision made at the hearing.

Grievance Procedures.

School districts are required to establish grievance procedures for resolving complaints related to those cases where the complainants allege that employees, other students, or third parties engaged in discriminatory behavior.¹³⁸ The grievance procedures must ensure that complaints are resolved in a prompt and equitable manner. In evaluating whether a school district’s grievance procedures are prompt and equitable, OCR will examine, for example, the extent to which notice of the procedures has been provided to students, parents, and employees of the school; whether the procedures afford an opportunity for an adequate, reliable, and impartial investigation; whether reasonably prompt timeframes have been established for the various stages of the complaint process; whether notice of the outcomes of the complaint has been provided to the parties; and whether there is an assurance that any violations will be addressed, and steps will be taken to prevent a recurrence.¹³⁹

Section 504 Coordinators.

School districts with 15 or more employees must designate an employee (sometimes referred to as a Section 504 Coordinator) to coordinate the district’s efforts to comply with Section 504.¹⁴⁰ In addition to coordinating and monitoring compliance with Section 504 within a school district Section 504 Coordinators will often distribute Section 504-related forms, documents, and information to parents; provide staff with information about Section 504 policies, practices, and procedures to help ensure that they fulfill their responsibilities in a timely and appropriate manner; respond to parent complaints; and complete other Section 504-related tasks within schools as necessary.

Notice of Non-Discrimination.

School districts must provide notice identifying the district’s Section 504 coordinator and notifying participants, beneficiaries, applicants, and employees, that it does not discriminate on the basis of disability in admission or access to, or treatment or employment in its program or activity.¹⁴¹ There are various methods a district may use to provide notice, including websites, handbooks, or postings.¹⁴²

Retaliation

Section 504 prohibits retaliation.¹⁴³ For example, once a student, parent, teacher, coach, or other individual complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, school staff are prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation.¹⁴⁴

Discriminatory practices are often only raised and remedied when students, parents, teachers, coaches, and others can report such practices to school administrators without the fear of retaliation. Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so.

Scenario 11 – Retaliation

Ms. Chen, the mother of a student with a disability, complained privately to the principal that her daughter and other students with disabilities are not receiving an appropriate education at the school. The situation did not improve so Ms. Chen raised the issue with the principal again at a recent Parent Teacher Association meeting in front of other parents and teachers. The following week, Ms. Chen, who had been a helpful and effective classroom volunteer for many months, received a letter from the principal indicating that Ms. Chen can no longer volunteer in her daughter’s classroom. Moreover, the principal offers no explanation for this change in policy in the letter. Ms. Chen asks around and learns that none of the other parent volunteers received a similar letter. May the principal do that?

Denying Ms. Chen the ability to volunteer in her daughter’s classroom would be unlawful retaliation if the school did so because the parent complained to the principal that her daughter was not receiving FAPE (either initially or in front of the Parent Teacher Association). However, if the school did so for a legitimate reason (for example, because the parent was disrupting instruction or endangering students), then the school may not have violated Section 504. The ultimate determination will depend on whether evidence indicates that the school’s actions were based on a legitimate reason for keeping the parent out of the classroom or if the school’s explanation was a pretext (excuse) for retaliation or if retaliation was a motivating factor in addition to the legitimate reason. In this case, the school had no evidence to suggest that Ms. Chen had been, or would likely be, disruptive or dangerous. Therefore, if the school allowed other parents, who did not file a complaint, to continue to volunteer in class, these facts would suggest that forbidding Ms. Chen from volunteering based on concern about disrupting class or endangering students is pretext and that the sole reason for banning her from class was to retaliate because she raised her concerns about services for students with disabilities.