Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973, which traces its origins to the wake of World War I, at which time the U.S. government sought to provide vocational rehabilitation to injured soldiers, is the oldest federal law addressing the needs of the disabled. According to Section 504, in language that is similar to that in Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972: “[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…” (29 U.S.C.A. § 794(a)). Section 504 differs significantly from the Individuals with Disabilities Education Act (IDEA). For example, while Section 504 applies to school systems that receive federal financial assistance in the form of money, books, or free lunches, school systems do not receive additional funds under its provisions, as do boards that serve children who qualify for IDEA services. Further, Section 504 protects individuals under the broader notion of impairment rather than the IDEA's reliance on the statutorily concept of disability, and Section 504 has no age limitation. Moreover, Section 504 covers students, employees, and others, including parents, while the IDEA focuses on the rights of children.

Section 504 defines an individual with a disability as 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” (29 U.S.C.A. § 706(7)(B)). In order to have “a record of impairment,” one must have a history of, or have been identified as having, a mental or physical impairment that substantially limits one or more major life activities, including learning and working (45 C.F.R. § 84.3(j)(2)(i)). Once an individual is identified as having an impairment, educators must consider whether the child is “otherwise qualified.” Unlike the IDEA, Section 504 neither requires that individuals submit to psychological or other examinations nor affords extensive due process protections.

In order to be “otherwise qualified,” persons 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 (iii) [one] to whom a state is required to provide a free appropriate public education [under the IDEA]” (45 C.F.R. § 84.3(k)(2)). Individuals who are “otherwise qualified” (meaning that, impairment aside, they are eligible to participate in programs or activities) must be permitted to partake as long as they can be provided with “reasonable accommodations.”

Even if one appears to be “otherwise qualified,” educators can rely on three defenses to avoid being charged [Page 877]with noncompliance with Section 504 (another major difference between Section 504 and the IDEA, which does not recognize defenses). First, educators can be excused from making accommodations that would result in “a fundamental alteration in the nature of [a] program” (Southeastern Community College v. Davis). The second defense allows educators to avoid making a modification if it imposes an “undue financial burden” (Southeastern Community College). 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 (School Bd. of Nassau County v. Arline).

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