Legally best practices in section 504 plans: a sound understanding of what the law actually requires can save you from awarding too many 'consolation prizes'

School Administrator, Sept, 2008 by Rachel A. Holler, Perry A. Zirkel

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A 7th grade student has been making successful progress, most recently earning the "proficient" or "met standard" designation on the state's annual assessment in literacy and math. Her parents bring in a doctor's diagnosis stating that the student has attention deficit/hyperactivity disorder. They are requesting a Section 504 plan for extended time on all tests, contending their daughter could do much better with this accommodation. Is the student entitled to a Section 504 plan?

Too often school districts automatically answer yes, increasingly when the student does not pass the state's assessments governing adequate yearly progress because of the high-stakes nature of the test for the school and the district.

Before proceeding with a Section 504 plan, your school district personnel must have a clear understanding of this law in comparison with the Individuals with Disabilities Education Act. With more privately diagnosed impairments, such as bipolar disorder, auditory processing disorder, dysthymia, oppositional defiant disorder, multiple chemical sensitivity and food allergies, becoming part of the lexicon of public education, schools are at risk for giving out Section 504 plans as "consolation prizes."

Defining Disability

Section 504 is civil rights legislation that is part of the Rehabilitation Act of 1973. Section 504 directly affects public schools, prohibiting discrimination against persons with disabilities. More specifically to students with disabilities, Section 504 provides various procedural protections and, for students, an entitlement to "appropriate education," which the regulations define as regular or special education and related services. Due in part to its overlapping coverage, Section 504 is often confused with the IDEA.

One of the major differences between Section 504 and the IDEA is their respective definitions of disability. For IDEA eligibility, students must qualify in one of the 13 recognized classifications, or impairments, and thus need special education--generally understood to be a two-part definition. In contrast, Section 504 has a three-part definition that is broader than the IDEA. Eligibility for a Section 504 plan, including accommodations, is for a student who has a physical or mental impairment that substantially limits one or more major life activities.

Let's revisit our student with AD/HD. If the evaluation, which is ultimately the school district's obligation, not the parent's, defensibly determines this diagnosis is correct, the critical question will be whether this impairment substantially limits learning or some other similarly global major life activity.

Quiz Questions

This two-item quiz can help you gauge your understanding of how the courts are interpreting the meaning of substantial limitation.

Q: When determining Section 504 eligibility, should an eligibility team make its determination of whether the student's identified impairment is "substantial" with or without mitigating measures, such as medication? For example, if the student has asthma and uses an inhaler, does your team determine whether the limitation on breathing is substantial with or without the inhaler?

Pick one: (A) with mitigating measures or (B) without mitigating measures.

Q: When determining Section 504 eligibility, which frame of reference should an eligibility team use in determining whether the impairment substantially limits the student's major life activity? The individual child's performance in relation to ...

Pick one: (A) his/her own potential, (B) the performance of other children in the same class, (C) the performance of other children (in the same grade) in the building, (D) the performance of other children (in the same grade) in the district, (E) the performance of other children (in the same grade) in the state or (F) the performance of other children (in the same grade) in the nation.

Answers Revealed

If you answered B for the first question, you are not alone. In our 2008 national study of Section 504 practices, more than a third of the respondents--three-fourths of whom were principals or assistant principals --thought determining eligibility without mitigating measures, like medication, was the correct choice. However, it is not. The U.S. Supreme Court has held that the determination of substantial limitation is with, not without, the effect of mitigating measures (Sutton v. United Air Lines Inc., 1999), and the lower courts have consistently applied this standard for K-12 students since then.

What about your frame of reference when looking at a student's performance? Educators want to do the best by and for the child, thus understandably measuring the child's performance against his or her potential. Less than 7 percent of respondents in our national survey selected the correct answer for this question. The courts (for example, in Costello v. Mitchell Public School District, 2001, and D.P. v. School District of Poynette, 2004) have consistently applied the eligibility element of substantial limitation in reference to the student's average peer in the general population.