Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
Title II and the IDEA
Two additional laws that apply to school districts’ obligations to students with disabilities in the elementary and secondary public school context are Title II of the ADA (Title II) and the IDEA. This section outlines major differences among Section 504, Title II, and the IDEA; highlights similarities; and provides examples that illustrate the fact that students with disabilities may be protected under two or all three of these Federal laws simultaneously.
OCR does not enforce the IDEA; however, OCR does enforce the Section 504 and Title II rights of IDEA-eligible students with disabilities. This means that OCR can investigate allegations that a school district violated the Section 504 and Title II rights, including Section 504 FAPE rights, of students who have an IEP under the IDEA.
Title II of the ADA prohibits State and local governments from discriminating on the basis of disability, regardless of whether or not those entities receive Federal financial assistance. OCR and the U.S. Department of Justice share in the enforcement of Title II in public elementary and secondary education systems and institutions, public institutions of higher education, vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and public libraries.
Violations of Section 504 that result from a school district’s failure to meet the obligations identified in this resource guide also constitute violations of Title II; however, to the extent that Title II provides additional or greater protection than Section 504, covered entities must comply with Title II’s requirements.146
The IDEA Part B is a formula grant program that provides assistance to States, and through them to local school districts, to assist in providing special education and related services to children with disabilities. Special education is defined under the IDEA as specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability and related services are defined as supportive services that are required to assist a child with a disability to benefit from special education.147
Unlike Section 504 and Title II, IDEA is not enforced by OCR. The Office of Special Education and Rehabilitative Services (OSERS) within the U.S. Department of Education is responsible for administering the IDEA. OSERS’ responsibilities include promulgating regulations and issuing guidance documents about the IDEA as well as monitoring State educational agencies’ compliance with the IDEA. OSERS also awards formula grants to States, including through the IDEA Part B program, and makes discretionary grants to eligible applicants.148
The IDEA differs from Section 504 and Title II in several ways.
While the IDEA focuses on special educational services for children with disabilities and the related rights afforded to eligible students and their parents, Title II and Section 504 focus on the nondiscrimination rights of students as well as other individuals with disabilities who are not students, such as family members with disabilities and members of the public with disabilities seeking information from, or access to, the services, programs, and activities of the public school. For example, under Title II and Section 504, parents with disabilities must be able to attend their children’s school play or attend Parent Teacher Association meetings if other parents are able to do so.
Additionally, disabilities are defined differently under the IDEA than under Section 504 and Title II. Under the IDEA, a child with a disability means a child who has been evaluated in accordance with IDEA requirements as having a specified disability and to need special education and related services because of that disability. The IDEA and its implementing regulations include 13 disability categories: autism, deaf‐blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment including blindness.149 However, States can recognize that a child is "a child with a disability" under the IDEA if the child needs special education and related services, regardless of whether the child fits within a specific disability category.150
If a school district finds a student ineligible for services under the IDEA, the school district is not relieved of its obligations under Section 504 or Title II; it is still required to consider if the student has a disability under Section 504 or Title II.151
You can go to pages 12-23 for information about the evaluation requirements under Section 504.
Section 504 and Title II require that an individual with a disability have a physical or mental impairment that substantially limits a major life activity or bodily function.
You can go to pages 3-9 for information about the definition of disability under Section 504.
There are no categories of disabilities under Section 504 and Title II; nor is there a requirement that an individual need special education and related services under Section 504 to be considered an individual with a disability. However, a child who has a disability who requires only a related service could be considered an individual with a disability for purposes of Section 504 and would be entitled to FAPE services under Section 504.
As a result, all students with disabilities who are eligible for special education and related services under IDEA are protected by Section 504 and Title II. The inverse, however, is not true. Not all students protected by Section 504 and Title II are IDEA-eligible students.
Among the protections afforded students with disabilities under Title II is the right to effective communication.152
146 28 C.F.R. § 35.103(a) and 42 U.S.C. § 12201(a). See also OCR, OSERS and DOJ, Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools (Nov. 12, 2014), www.ed.gov/ocr/docs/dcl-faqs-effective-communication-201411.pdf.
147 34 C.F.R. §§ 300.39 and 300.34, respectively.
148 See generally idea.ed.gov/ and https://osep.grads360.org/
149 20 U.S.C. § 1401(3); 34 C.F.R. § 300.8. Although a child’s need for special education is a critical part of IDEA’s definition of child with a disability and thus a child’s entitlement to FAPE under IDEA, a child who has an impairment listed in the IDEA can be considered a child with a disability if the child needs a related service that consists of specially designed instruction that is considered special education rather than a related service under State standards. 34 C.F.R. § 300.8(a)(2)(ii).
150 See 34 C.F.R. § 300.111(d) (IDEA does not require that children be classified by their disability so long as each child who has a disability listed in 34 C.F.R. § 300.8 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act).
151 In some circumstances, the IDEA evaluation process may provide the school district with the necessary information, required by Section 504, to determine whether a student has a disability, and whether that student needs related aids and services or supplementary aids and services in the regular education environment because of that disability.
152 28 C.F.R. § 35.160.
Among the auxiliary aids and services that help to ensure effective communication for students with disabilities are listed below. 153
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qualified interpreters
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note takers
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exchange of written materials
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Braille materials and displays
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assistive listening systems
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accessible electronic and information technology
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open and closed captioning
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a portable device that writes and/or produces speech
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taped texts
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audio recordings
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real-time computer-aided transcription services (for example, Communication Access Real-Time translation (CART))
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screen reader software
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magnification software
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optical readers
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secondary auditory programs (SAP)
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large print materials
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work or letter boards
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writing materials
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spelling to communicate
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qualified readers
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telecommunication services
The vast majority of students who have disabilities affecting communication, such as hearing, vision, and speech disabilities, and who often rely on the types of auxiliary aids and services listed above are also IDEA‐eligible.154 School districts must therefore ensure that they comply with both the IDEA and the effective communication requirements under Title II for students with disabilities.155
153 28 C.F.R. § 35.104.
154 See OCR, OSERS and DOJ, Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools FAQ 2 (Nov. 2014), www.ed.gov/ocr/docs/dcl-faqs-effective-communication-201411.pdf. This document explains, among other things, how school districts must give primary consideration to the request of the individual with a disability in determining what type of auxiliary aid or service is needed.
155 See K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014); see also OCR, OSERS and DOJ, Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools FAQ 1 & 2 (Nov. 2014), www.ed.gov/ocr/docs/dcl-faqs-effective-communication-201411.pdf.
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