Disabilities, of Students

Section 504 of the Rehabilitation Act of 1973

Section 504 declares that “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance.” Section 504 differs from the IDEA in six major ways. First, while Section 504 applies to school systems that receive federal financial assistance, whether, for example, in the form of money, books, or free lunches, they do not receive additional funds under its provisions as do boards that serve children who qualify for IDEA services. Second, Section 504 protects individuals under the broader notion of impairment rather than the IDEA's reliance on the concept of disability. Third, Section 504 has no age limitation. Fourth, the IDEA includes more extensive procedural due process provisions than Section 504. Fifth, Section 504 covers students, employees, and others, including parents, while the IDEA focuses on the rights of children. Sixth, as described below, Section 504 offers defenses that are not available under the IDEA.

According to Section 504, an individual with a disability is one “who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” In order to have a record of impairment, one must have a history of, or been identified as having, a mental or physical impairment that substantially limits one or more major life activities, including schooling. Once a student is identified as having an impairment, educators must consider whether the child is “otherwise qualified.”

In order to be “otherwise qualified,” children must be “(i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or [Page 293](iii) [one] to whom a state is required to provide a free appropriate public education [under the IDEA].” Individuals who are otherwise qualified, meaning that they are eligible to participate in programs or activities despite the existence of an impairment, must be permitted to so do in such an activity as long as they can be provided with “reasonable accommodations.”

Even if children appear to be “otherwise qualified,” educators can rely on one of three defenses to avoid being charged with noncompliance of Section 504. This is another major difference between Section 504 and the IDEA, since the latter does not recognize defenses. First, educators can be excused from making accommodations that would result either in fundamental alteration of their program or that would subject their program to an undue financial burden (see Southeastern Community College v. Davis, 1979). The third defense is that otherwise qualified individuals can be excluded from programs if their presence creates a substantial risk of injury to themselves or others (see School Board of Nassau County v. Arline, 1987).

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