Program Requirements

Whom does Section 504 protect?

Section 504 was enacted to protect otherwise qualified individuals with disabilities from discrimination based solely on their disability, based on the fact that they have a previous history of having a disability, or on the fact that they are perceived as having a disability. Whether a particular individual is protected under Section 504 requires a careful analysis first of whether the individual is an “individual with a disability” and then whether that individual is qualified. More specifically, an individual is protected under Section 504 if any of the following three situations exist.

Prong I
The person has a physical or mental impairment that substantially limits one or more major life activities. The disabling condition need only substantially limit one major life activity in order for the student to be protected from discrimination. Substantial limitation is the key concept in this definition. Under Section 504, major life activities include, but are not limited to the following:

Caring for one’s self

Performing manual tasks

Walking

Seeing

Hearing

Speaking

Breathing

Learning

Working

Conditions resulting from cultural, environmental, economic factors, and age are not considered to be disabilities under Section 504. Individuals with an identified disability are protected against discrimination under Section 504. As students with disabilities, part of the protection from discrimination means they must also be provided a free and appropriate public education (FAPE) in the form of non-instructional and instructional accommodations. School districts have certain obligations to ensure that accommodations are provided, as described in the “Implementation” section of this tutorial.

Students described in Prongs II and III are protected from discrimination under Section 504, even though they are not individuals with a current substantiated disability under Section 504 for which accommodations may be necessary.

Prong II
Individuals having a record or history of a physical or mental impairment that substantially limits one or more of the individual’s major life activities are also protected from discrimination under Section 504. A student who has been dismissed from a special program for students with disabilities would be an example of someone who has a record of having had a disability. Denying that student the opportunity to participate in field trips because of a previous history of a disability would be an example of discrimination.

Prong III
Finally, individuals who are regarded as having a physical or mental impairment when in fact such impairment may or may not actually exist are protected from discrimination under Section 504. A person with a history of a mental or physical impairment because of misclassification also qualifies for protection under Section 504. An example would be a limited English proficient student mistakenly determined to be eligible for a special program for students who are mentally disabled. A student with epilepsy might be treated as having an impairment that limited physical activities such as sports when the student actually has no limitation that would affect participation in sports. Others might treat a person with HIV but no physical effects as if a physical impairment existed based simply on the medical condition. Unlike individuals with a current disability, students with a record of a disability or who are regarded as having a disability are not eligible for services and/or accommodations not afforded to the general population. However, such individuals are protected against discriminatory action based on the recorded or perceived disability and should be afforded any remedial or corrective aids and services they might need that are available to the general student population. The progress monitoring plan (PMP) may be an appropriate tool for providing such remedial services.

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MYTH: Section 504 provides more than IDEA in terms of coverage and protection in the educational environment.

MYTH: Every student who has ever been in special education is automatically covered by Section 504 because the student has a “record of ” a disability.

What ages does Section 504 cover?

When determining whether a student with a disability is protected under Section 504, the public schools must use the following definition:

With respect to public preschool, elementary, secondary, or adult educational services, a disabled person is qualified if he or she is (i) of an age during which nondisabled persons are provided such services; (ii) of any age during which it is mandatory under state law to provide such services to disabled persons; (iii) or [is an individual] to whom a state is required to provide a free appropriate public education under Section 612 of the Individuals with Disabilities Education Act [34 CFR 104.3(k)(2)].

How is discrimination defined for students with disabilities?

No qualified person with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance [34 CFR 104.4(a)].

Discrimination under Section 504 [34 CFR 104.4(b)] is essentially the same as under the FEEA and occurs when an institution engages in any of the following practices:

1. Denying a qualified person with a disability the opportunity to participate in or benefit from the aids, benefits, or services that are afforded students without disabilities
2. Providing the qualified person with a disability an opportunity to participate in or benefit from the aids, benefits, or services that are not equal to that afforded others
3. Providing aids, benefits, or services to a qualified person with disabilities that are not as effective as those provided to persons without disabilities (To be equally effective, an aid, benefit, or service need not be identical or produce equal results; it merely must afford an equal opportunity to achieve equal results.)
4. Providing different or separate aids, benefits, or services to a qualified person with a disability unless such an action is necessary to provide aids, benefits, or services that are equally effective as those provided others
5. Aiding or perpetuating discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of a disability
6. Denying qualified persons with disabilities the opportunity to participate as a member of a planning or advisory board because of their disabilities
7. Otherwise limiting a qualified person with a disability from the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others
8. Selecting the site or location of a facility that excludes persons with disabilities, denies them benefits, or otherwise subjects them to discrimination
9. Despite the existence of separate or different programs or activities, denying a qualified person with a disability the opportunity to participate in a program or activity that is not separate or different*

*Note: Providing unnecessarily separate or different services is discriminatory.

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