What Are the Foundational Rights of All Children Within a Public Classroom? (page 2)
Section 504 is a civil rights law that was first important in public school settings for those students needing physical access. Increased physical access (e.g., ramps, elevators, larger bathroom stalls) was undertaken in the 1970s, although work continues today (e.g., installing automatic doors). A more recent impact of Section 504 has been on obtaining access to the content of instructional programs. This focus of Section 504 became nationally recognized with the need for services for individuals with ADHD.
Schools, colleges and universities, and other educational institutions receiving federal funds must ensure equal educational opportunities for all students. This includes activities that are related to instruction and to educational and social opportunities, such as field trips, recess, or evaluation procedures. Thus, not allowing a student with ADHD (or with emotional and behavioral disorders) to go on a field trip because he runs in the hall is an instance of punishing the child for his disability. That is, the school cannot exclude children from educational or social opportunities as a way to punish them for behavior that is a manifestation of their disability any more than the judicial system can unreasonably punish someone who is legally insane, mentally deficient, or a juvenile. This is called manifest determination, that is, determining whether a behavior was a manifestation of a student’s disability. Manifest determination has been revised (H.R. 1350) to determine whether the conduct was caused by or had a direct and substantial relationship to the child’s disability or whether the conduct was the direct result of the local educational agency’s failure to implement the IEP.
Manifest determination is based on Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112). Section 504 provides the following:
No otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance. (29 U.S.C 794[a] CFR PART 104)
In this regard, Section 504 is only somewhat different from the Americans with Disabilities Act (ADA). That is, Title II of the ADA of 1990 guarantees equal educational opportunity but is not dependent on whether the institution is receiving federal funds (e.g., can be applied to parochial or charter schools). Title II provides the following:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. (42 U.S.C. 12132 CFR Part 35)
Section 504 also differs from IDEA in that it does not require a written IEP document. However, it does require a plan, although this plan need not be written. Because discrimination laws such as Section 504 allow for personal civil suits to be taken against school systems, a written record may still be important in demonstrating compliance with the nondiscrimination edicts of Section 504. This written record can be accomplished using functional assessment.
It is recommended that those persons who are knowledgeable about the student (e.g., teachers, parents, administrators, counselors) convene and agree on a plan of services and accommodations that are “reasonable,” meaning that the modification is not costly and does not harm the education of other students. The most common modification includes reducing the quantity of written work required while still assessing the student’s attainment of the objectives (Reeve, Schrag, & Walker, 1994). Related services, if required by the disability, include transportation, speech, psychological assessment, occupational and physical therapy, and counseling.
Similar to IDEA, Section 504’s regulations require that a child with a disability be served in a LRE with the use of supplementary aids and services to the maximum extent appropriate before placement in special education. The majority of students with ADHD are served in the general education classroom with a 504 plan (Reeves et al., 1994). However, students with 504 plans could be placed in special education resource rooms, for example, with related services.
The Office of Civil Rights is the enforcement agency for Section 504 and ensures that the educational institution is providing what is necessary for the student to benefit from education. Section 504 also requires districts with more than 15 paid employees to designate a 504 coordinator from among their employees. The 504 coordinator is responsible for assuring district compliance with Section 504 and providing a grievance procedure for parents, students, and employees. IDEA procedures may be used to implement Section 504 but are not required.
The Office of Civil Rights monitors school systems on a nonsystematic basis but more often in response to specific complaints from parents. There are sanctions for not being in compliance (i.e., losing federal monies that support other educational programs). However, Section 504 does not have a funding mechanism. It mandates services and reasonable accommodations but does not provide additional funds. It should be noted that H.R. 1350 authorizes local educational agencies to use up to 15% of IDEA funds for supportive services to help students who have not been identified with disabilities but who require additional academic and/or behavioral support to succeed in general education settings.
© ______ 2006, Merrill, an imprint of Pearson Education Inc. Used by permission. All rights reserved. The reproduction, duplication, or distribution of this material by any means including but not limited to email and blogs is strictly prohibited without the explicit permission of the publisher.
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