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Key Differences Between Section 504,
the ADA, and the IDEA

by Peter Wright and Pamela Wright

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Note: After this article was published, the ADA was amended and provides a broader basis for ADA/504 protections. After you complete this article, be sure to read the more current articles on our website about the Americans with Disabilities Act Amendments Act of 2008 (ADA AA). A portion of this article is taken from a chapter in Wrightslaw: From Emotions to Advocacy - The Special Education Survival Guide by Pete and Pam Wright.

In this article, you will learn about Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, and how they differ from the Individuals with Disabilities Education Act (IDEA).

The key portion of Section 504 of the Rehabilitation Act at 29 U. S. C. § 794 states:

Section 794. Nondiscrimination under Federal grants and programs
(a) Promulgation of nondiscriminatory rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in Sec. 705(20) of this title, 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 Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service . . .

The Americans with Disabilities Act, as it applies to public entities, is identical. Subchapter II, Part A, of the Americans with Disabilities Act at 42 U. S. C. § 12132 and § 12133 states:

Section 12132. Discrimination
Subject to the provisions of this subchapter, 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, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Section. 12133. Enforcement
The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

The language of ADA tracks Section 504 and explains that the remedies, procedures and rights under the ADA are the same as under the Rehabilitation Act. Except for accessibility of buildings, and modifications and accommodations in testing, Section 504 and ADA provide few protections and limited benefits to children with disabilities.

Section 504 and ADA: Purposes

Section 504 is a civil rights law. The purpose of Section 504 is to protect individuals with disabilities from discrimination for reasons related to their disabilities. ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law.

Unlike IDEA, Section 504 and ADA do not ensure that a child with a disability will receive an individualized educational program that is designed to meet the child's unique needs and provide the child with educational benefit, so the child will be prepared for "for further education, employment and independent living." (See 20 USC 1400(d))

Eligibility

The child who has a disability or impairment does not automatically qualify for special education services under the IDEA. If the child has a disability but does not need special education services, the child will not qualify for special education and related services under the IDEA but may receive protections under Section 504 of the Rehabilitation Act.

To be eligible for protections under Section 504, the child must have a physical or mental impairment. This impairment must substantially limit at least one major life activity. Major life activities include walking, seeing, hearing, speaking, breathing, learning, reading, writing, performing math calculations, working, caring for oneself, and performing manual tasks. The key is whether the child has an "impairment" that "substantially limits . . . one or more . . . major life activities."

Section 504 requires an evaluation that draws information from a variety of sources. Section 504 does not require a meeting before a change in placement.

Confusion about Benefits and Rights

Some parents and educators believe that under IDEA, the child must be placed in special education classes but that if the child has a 504 plan, the child may remain in the regular classroom. For these reasons, parents often assume that Section 504 is more desirable. This is incorrect. "Special education" under IDEA is not a place or placement.

The child who receives Section 504 protections has fewer rights than the child who receives special education services under the IDEA. The child who receives special education services under the IDEA is automatically protected under Section 504.

Protection from Discrimination

Section 504 protects children with disabilities from discrimination. It is important to understand that if your child does not receive special education services under IDEA, your child does not have the procedural protections that are available under the IDEA statute.

Accommodations and Modifications

Under Section 504, the child with a disability may receive accommodations and modifications that are not available to children who are not disabled. These accommodations and modifications are also available under IDEA.

Access v. Educational Benefit

Change the facts to clarify the differences between these two laws. Assume that your special needs child is in a wheel chair. Under Section 504, your child shall not be discriminated against because of the disability. Your child shall be provided with access to an education, to and through the schoolhouse door. Modifications may be made to the building and other accommodations may be made for your child.

Under Section 504 regulations, a free appropriate public education is defined as "the provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met and . . . are based upon adherence to specified procedures." (34 C.F.R.§ 104.33(b)(1))

Now assume that your child in a wheelchair also has neurological problems that adversely affect the child's ability to learn. Under the IDEA, if your child has a disability that adversely affects educational performance, your child is entitled to an education that is designed to meet the child's unique needs and from which your child receives educational benefit. Section 504 includes no guarantee that your wheelchair-bound child will receive an education from which your child receives educational benefit. Your Section 504 child has access to the same free appropriate public education that is available to children who are not disabled.

Discipline

If the Section 504 child misbehaves and the school decides the child's behavior is not a manifestation of the disability, the child can be expelled from school permanently. The IDEA child has the right to FAPE, even if expelled from school. Section 504 and ADA do not provide these protections.

Procedural Safeguards

Section 504 does not include a clearly established "Prior Written Notice" requirement. In contrast, IDEA includes an elaborate system of procedural safeguards designed to protect the child and parents. These safeguards include written notice before any change of placement and the right to an independent educational evaluation at public expense. Section 504 does not include these protections.

Impartial Hearings

Section 504 and IDEA require school districts to conduct impartial hearings for parents who disagree with identification, evaluation, or placement. Under Section 504, the parent has an opportunity to participate and obtain representation by counsel, but other details are left to the discretion of the school district.

NOTE: Section 504 of the Rehabilitation Act is in Wrightslaw: Special Education Law, 2nd Edition , pages 291 to 298.

Summary


In this article, you learned that Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are responsible for accommodations and modifications in testing situations and programs, and improved building accessibility. You learned that these statutes do not require public schools to provide an educational program that is individualized to meet the unique needs of a child with the goal of enabling the child to become independent and self- sufficient. You learned that the child with a Section 504 plan does not have the protections available to the child who has an IEP under the IDEA.

Section 504, ADA, High Stakes Testing, Statewide Assessments:
PEER Information Brief

Parents Engaged in Education Reform (PEER) is a national technical assistance project operated by The Federation for Children with Special Needs and funded by the U.S. Department of Education, Office of Special Education Programs. PEER seeks to increase the participation of special needs parents and organizations in school reform efforts.

PEER prepared an excellent information brief about Section 504, ADA, and statewide and high stakes testing. If you are interested in learning more about these issues, we suggest that you read the information brief.


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Last Revised: 03/02/08



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