Education Section 504's White Elephant

And how it harms your child

Absent intent or authority as legal advice.

So, I’m on an education case in Texas, and it’s very revealing. Disturbingly so. It’s so disturbing that I almost feel sorry for the school district and their attorneys. Almost…

Invoking the ADA.

Back last year, I was on a case in Georgia, and it was an IEP case, and I invoked the ADA and requested accommodations, and spelled out the non-discrimination, and prohibited acts portions of the ADA. I noticed that it made the school recoil with a “how dare you bring that into this” kind of posture. I just kept applying pressure and the outcome resulted in a favorable resolution.

With this Texas case, I’ve notice that schools are wholly unprepared to meet, and are even afraid of their obligations under the ADA, and their standard operating procedure is to assert only Section 504 of the 1973 Rehabilitation Act, as if it is somehow more powerful than the ADA. The US Department of Education disagrees.

Ask for accommodation? The schools will immediately suggest that the student subject themselves to a 504 evaluation. While there is a requirement for the school to attempt to gain consent for the 504 evaluation, there is no duty for the parent to consent to the evaluation, and IDEA, 34 CFR 300.300(a)(3) provides consent overrides, if the school wants to use them (i.e., has a belief that they really need to), but that path is with more restrictions on the school, and we know they like to operate with carte blanche authority.

The glaring elephant in the room, however, is that the US Department of Education readily admits that schools are required to revise their policies and procedures regarding the determination of coverage and provision of services under Section 504 and Title II, to implement the ADA Amendments Act’s “new legal standards.” and “As noted above, the definition of disability is to be interpreted broadly, so determining whether one has a disability should not demand extensive analysis”. (See Q5 and the corresponding answer in the linked section here.

And NO SCHOOL DOES THIS. In sticking with the 504 (only) evaluation, they are adhering to the more stringent (extensive analysis) of the 504 evaluation, when the ADA Amendments Act, and the US Department of Education clearly avoids and instructs to avoid “extensive analysis”.

See the 504 analysis is an intimidating thing. You’re going to have to provide medical records or access to doctor records, or go to be somehow evaluated. The ADA Amendments Act requires NONE of this for equal access to school, and the ADA Amendments Act is the “new legal standard”, as the US Department of Education so aptly puts it.

I've heard of 504 representatives threatening parents with the information they give on the evaluation forms if they don't just give in to the suggested IEP without challenge. This is reprehensible, yet it goes on, and is swept under the rug.

Schools are accustomed to bullying and they abhor being challenged, but the elephant in the room says that 504 evaluation (alone) does NOT comply with the removal of extensive analysis that is clearly and unambiguously prescribed in the ADA Amendments Act of 2008.

Schools are accustomed to making parents and students jump through all kinds of hoops to get equal access. The ADA Amendments Act is supposed to eliminate those hoops. Supposed to…

The purpose statement of Title II of the ADA, which is applicable to public schools, says (28 C.F.R. §35.101(b)): “(b) Broad coverage. The primary purpose of the ADA Amendments Act is to make it EASIER for people with disabilities to obtain protection under the ADA. Consistent with the ADA Amendments Act's purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of “disability.” The question of whether an individual meets the definition of “disability” under this part should not demand extensive analysis.” (emphasis added)

Section 504 = Extensive Analysis on whether a disability exists.

ADA Amendments Act = Removal of extensive analysis.

These two are incompatible, until the school, or school district, does what the US Department of Education says it must, and revises their policies and procedures regarding the determination of coverage and provision of services under Section 504 and Title II, to implement the ADA Amendments Act’s “new legal standards.”

504 Evaluations (as a stand-alone) don’t have to follow the prohibition of 42 U.S.C. §12203(b) and avoid the unlawful prohibited acts of coercion, intimidation, threats, and interference with ADA rights.

504 Evaluations (as a stand-alone) don’t have the state sovereign immunity removed as in 42 U.S.C. §12202, 28 C.F.R. §35.178 and Tennessee v. Lane, 541 US 509 (2004).

504 Evaluations (as a stand-alone) purport to be entitled to extensive analysis, in repugnance to 28 C.F.R. §35.101(b) which eliminates extensive analysis.

So, when a school demands to follow only 504 regulations, without agreeing to follow the ADA Amendments Act, they are doing so, because they want to retain the power over the disability access, without providing the non-discrimination demanded by the ADA Amendments Acts, which the US Department of Education agrees “If a district failed to implement the changes made by the Amendments Act, that district may be unlawfully denying Section 504 or Title II coverage to students.” In my experience, ALL schools stick to 504 as a stand-alone, without incorporating the new legal standard of the ADA Amendments Act of 2008.

You read it here first. ALL schools that push 504 Evaluation are non-compliant with the ADA Amendments Acts in my opinion. This problem is NATIONWIDE.

And what your child needs, if you still happen to even believe in the public school system, is access, not elimination of access. Section 504 eliminates access with the intrusive 504 evaluation.

P.D., Jay V. Shore, as Certified ADA Advocate