Section
504 and Special Education
by
Herbert D. Hinkle, Esq. and Ira M. Fingles, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
When most people
use the term "special education," they are referring to
the rights created by a federal statute known as the Individuals with
Disabilities Education Act or "IDEA." In addition to the
IDEA, however, there is another federal statute that provides important
rights for students with disabilities: Section 504 of the Rehabilitation
Act of 1973 or just "Section 504." Section 504 prohibits
all recipients of federal funding from discriminating on the basis
of a personās disability. All public schools in both Pennsylvania
and New Jersey receive some federal funding and therefore are covered
by the lawās requirements.
One of the main
differences between the IDEA and Section 504 is who is covered. Under
the IDEA, a student must fit into one of the disability categories
listed in the statute (such as Specific Learning Disability, Hearing
Impaired, etc.). Section 504 applies to any student who has a disability,
whether or not it is included in the IDEAās list of classifications.
A disability is defined as "a physical or mental impairment which
substantially limits one or more major life activities." Major
life activities are such things as caring for oneself, walking, seeing,
hearing, speaking, breathing, or learning. Because Section 504ās eligibility
criteria are broader than those of the IDEA, more children will be
covered by Section 504. This is particularly true of children who
have relatively mild disabilities.
Because Section
504 covers children with less-severe disabilities than the IDEA, many
people believe that it provides fewer rights. This is not true. Section
504 provides nearly identical protection to students with disabilities
as the IDEA. Both laws guarantee that students with disabilities receive
a free appropriate public education ("FAPE") consisting
of special education and related services designed to meet the studentās
individual needs. Both laws require that an individualized plan be
developed specifying what accommodations and specialized services
the child will be provided. Under the IDEA, this is the Individualized
Education Program or "IEP." Most schools call the plan developed
under Section 504 an Accommodation Plan. Both laws require that students
are placed in an educational setting in which he or she can receive
all of the supports and services deemed to be necessary. Contrary
to what many school personnel believe, Section 504, like the IDEA,
requires that a student be placed in a private or residential school
when less restrictive placement options are insufficient to meet the
studentās needs.
It often takes
a great deal of effort to help school personnel understand just how
extensive the requirements of Section 504 really are. Because most
services available under Section 504 are also available under the
IDEA, it may be more efficient to simply focus on the studentās rights
under the IDEA. However, for students who are not eligible for IDEA
services, knowing and using Section 504 may be critical.
Copyright 2001
H.D. Hinkle. All rights reserved.
Mr. Hinkle maintains
a multi-state law practice with offices in Lawrenceville, Florham
Park, and Marlton, NJ, and Yardley, Pa. Mr. Hinkle and his colleagues
Ira Fingles, and Paul Prior lecture and write frequently on topics
of law, aging, and disability, and are available
to speak to groups in New Jersey and Pennsylvania
at no charge. Call (609) 896-4200.
