Education of Individuals with Disabilities: The Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA)

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Several federal statutes, notably the Individuals with Disabilities Education Act (IDEA), Section
504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA), address the rights
of individuals with disabilities to education. Although there is overlap, particularly with Section
504 and the ADA, each statute plays a significant part in the education of individuals with
disabilities, and is of interest to Congress both in preparing for the reauthorization of IDEA and in
oversight of recent amendments to the ADA. IDEA, enacted in 1975, is both a grants statute and
civil rights statute and requires programs for children with disabilities that are in addition to those
available to children without disabilities. Section 504, enacted in 1973, and the ADA, enacted in

1990, are civil rights statutes that prohibit discrimination against individuals with disabilities.

Introduc tion ..................................................................................................................................... 1
Overview of the Statutes.................................................................................................................1
The Individuals with Disabilities Education Act.......................................................................1
Section 504 of the Rehabilitation Act.......................................................................................2
The Americans with Disabilities Act.........................................................................................3
Eligibility ......................................................................................................................................... 3
Age Requirements.....................................................................................................................3
Definitions of Child with a Disability and Individual with a Disability...................................3
Identification and Evaluation of Children with Disabilities............................................................6
Educational Rights of Children with Disabilities............................................................................6
General ...................................................................................................................................... 6
Free Appropriate Public Education...........................................................................................7
Disciplinary Procedures...................................................................................................................9
Parental Rights..............................................................................................................................10
Reme dies ....................................................................................................................... ................. 11
Author Contact Information..........................................................................................................13

Several federal statutes, notably the Individuals with Disabilities Education Act (IDEA),¹ Section ²³
504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA), address the rights
of individuals with disabilities to education. Although there is overlap, particularly with Section
504 and the ADA, each statute plays a significant part in the education of individuals with
disabilities, and is of interest to Congress both in preparing for the reauthorization of IDEA and in
oversight of recent amendments to the ADA. IDEA, enacted in 1975, is both a grants statute and
civil rights statute and requires programs for children with disabilities that are in addition to those
available to children without disabilities. Section 504, enacted in 1973, and the ADA, enacted in

1990, are civil rights statutes that prohibit discrimination against individuals with disabilities.

Their coverage is similar and the ADA was modeled on Section 504 and its regulations; however,
the major distinction is that Section 504 only applies to entities that receive federal financial
assistance, while the ADA has broader coverage, not tied to the receipt of federal funds.

IDEA provides federal funding for the education of children with disabilities and requires, as a
condition for the receipt of such funds, the provision of a free appropriate public education
(FAPE). Originally enacted in 1975 by P.L. 94-142, the act responded to increased awareness of
the need to educate children with disabilities, and to judicial decisions requiring that states
provide an education for children with disabilities if they provided an education for children ⁴
without disabilities. IDEA has been amended several times, most recently by P.L. 108-446 in ⁵⁶

2004. The act both authorizes federal funding for special education and related services and, for ⁷

states that accept these funds, sets out principles under which special education and related
services are to be provided. The requirements are detailed, especially when the regulatory
interpretations are considered. The major principles include the following requirements:
• States and school districts make available a free appropriate public education ⁸⁹
(FAPE) to all children with disabilities, generally between the ages of 3 and 21.
¹
^{20 U}^.^S.C^.^§¹⁴^{00 e}^t^s^e^q^.
²²⁹^U^.^S^.^C^.^§7⁹⁴^.
³⁴²^U^.^S^.^C^.^§1²¹⁰¹^et^seq^.
⁴^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^c^o^ng^r^e^s^sⁱ^ona^{l in}^te^nt^be^hin^d^t^h^e^eⁿ^a^c^t^m^e^{nt of}^P^.^L^.⁹⁴^-¹^{42, s}^e^e^C^R^S^R^e^por^t⁹⁵^-
⁶⁶⁹^,^T^h^e^In^divⁱ^d^{uals w}^ith^Disabi^l^itie^{s Educ}^atio^{n Ac}^t:^Con^g^re^ssion^{al In}^te^nt^,^by^N^a^ncy^L^e^e^J^one^s^.
⁵^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^c^h^aⁿ^g^e^s^m^a^de^by^P^.^L^.¹⁰^8-⁴^46,^s^e^e^C^R^S^R^e^por^{t R}^L³²⁷¹^6,^Iⁿ^di^vi^du^a^l^{s w}ⁱ^t^h
^Disabilit^ie^{s Ed}^uc^ati^on^Ac^{t (}^I^{DEA): Ana}^l^y^s^{is of C}^h^a^nge^{s M}^a^de^by^P.L.¹⁰^8-4⁴⁶^,^by^Rⁱ^c^h^a^r^{d N}^.^A^p^li^ng^a^{nd N}^a^nc^y^L^e^e
^J^one^s^.
⁶^Re^la^te^{d se}^rv^ic^e^s⁽^f^{or e}^x^a^m^ple^,^phy^sic^a^{l the}^r^a^p^y⁾^a^s^sist^c^h^ildre^{n w}^{ith d}ⁱ^sa^bilitie^{s t}^o^he^{lp t}^h^e^m^be^ne^fⁱ^t^f^r^o^m^spe^cⁱ^a^l
^e^duc^a^tion⁽²^{0 U}^.^S^.^C^.^§1⁴⁰¹⁽²⁶⁾^,^P.L^.¹⁰^8-⁴⁴⁶^§6⁰²⁽²⁶⁾⁾^.
⁷^Cu^rren^t^l^y^,^al^l^st^at^{es recei}^{ve IDE}^A^f^unding^.
⁸^I^t^s^h^o^u^l^d^be^e^m^pha^sⁱ^z^e^d^tha^t^w^h^a^t^is^r^e^qu^ir^e^d^u^nde^r^I^D^EA^is^the^pr^ov^is^ion^of^a^f^r^e^e^a^ppr^opr^ia^te^p^ubli^c^e^duc^a^tion^.^T^h^e
^Supr^e^m^e^C^our^{t, i}ⁿ^B^o^a^r^d^of^Educ^a^tion^of^the^H^e^ndr^ic^k^H^u^ds^on^C^e^ntr^a^{l Sc}^h^ool^Dⁱ^s^t^rⁱ^c^t^v^.^R^o^w^l^e^y^{, 458 U}^.^S.¹⁷⁷
⁽^c^onti^nue^d.^..)

• States and school districts identify, locate, and evaluate all children with
disabilities, regardless of the severity of their disability, to determine which
children are eligible for special education and related services.
• Each child receiving services has an individual education program (IEP) spelling
out the specific special education and related services to be provided to meet his
or her needs. The parent must be a partner in planning and overseeing the child’s
special education and related services as a member of the IEP team.
• “To the maximum extent appropriate,” children with disabilities must be
educated with children who are not disabled.
• States and school districts must provide procedural safeguards to children with
disabilities and their parents, including a right to a due process hearing, the right
to appeal to federal district court and, in some cases, the right to receive
attorneys’ fees.
IDEA has detailed requirements that states receiving funds under the act are required to follow.
However, IDEA also allows some flexibility for states. For example, a state may, but does not
have to, define a group of children aged three to nine or any subset of that age as children with ¹⁰
disabilities if they are experiencing developmental delays. This flexibility allows for more state
discretion under IDEA whereas the nondiscrimination mandates of Section 504 and the ADA are
more uniform.
Unlike IDEA, the statutory language of Section 504 is brief. Essentially, Section 504 prohibits
discrimination against an otherwise qualified individual with a disability solely by reason of
disability in any program or activity receiving federal financial assistance or under any program ¹¹
or activity conducted by an executive agency or the U.S. Postal Service. This prohibition goes
far beyond the provision of education and also includes all levels of education, including colleges ¹²
and universities which are not covered by IDEA. Generally, although there are some differences
which will be discussed subsequently, regarding K-12 schools, the Department of Education (ED)
has interpreted the Section 504 compliance standards for schools to be the same as the basic ¹³
requirements of IDEA. In addition, the tenth circuit court of appeals in a 1982 decision held that

^(...c^on^tin^ue^d)
⁽¹⁹⁸²⁾^,^he^ld^tha^t^this^r^e^quir^e^m^e^{nt is}^s^a^tis^fⁱ^e^d^w^h^eⁿ^the^s^t^a^t^e^pr^ov^id^e^s^pe^r^s^ona^liz^e^dⁱⁿ^s^t^r^u^c^tⁱ^{on w}^{ith s}^u^f^fⁱ^cⁱ^eⁿ^{t s}^upp^or^t
^se^rv^ic^e^s^{to pe}^rm^{it a}^c^h^{ild t}^o^be^ne^f^{it e}^duc^a^tⁱ^ona^lly^f^r^o^m^tha^tⁱⁿ^st^ru^ctⁱ^oⁿ^,^an^{d t}^h^at^t^hⁱ^sⁱⁿ^st^ru^ctⁱ^o^{n sh}^ou^l^d^b^e^reasoⁿ^a^b^l^y
^cal^cu^l^a^t^e^d^t^o^en^a^b^l^e^t^h^{e c}^hⁱ^l^d^t^o^ad^van^{ce f}^r^o^m^grad^{e t}^o^grad^e.^IDE^A^d^o^e^{s n}^o^t^requⁱ^r^{e t}^h^at^{a st}^at^{e m}^a^xi^mⁱ^{ze t}^h^{e p}^o^t^en^tⁱ^a^l
^of^c^h^ildre^{n w}^ith^disa^bilit^ie^s.
⁹^P^a^{rt C of}^IDEA^{, 20 U.}^S.C.^§1⁴³^{1 e}^t^se^q.,^pr^ov^ide^s^f^o^{r g}^r^aⁿ^{ts to st}^a^t^e^s^a^{nd loc}^a^litie^{s t}^o^eⁿ^ha^nc^e^the^de^v^e^lopm^eⁿ^{t of}
^inf^a^{nts a}^{nd t}^o^d^d^le^{rs w}^{ith disa}^bi^lit^ie^s.
¹⁰^{20 U}^.^S.C^.^§¹⁴⁰¹⁽³⁾⁽^B⁾^.
¹¹^{29 U}^.^S.C^.^§⁷⁹⁴^{. F}^o^r^a^m^o^r^e^de^ta^ile^{d dis}^c^us^sⁱ^on^of^Se^c^tion⁵⁰^{4 s}^e^e^C^R^S^R^e^por^t^R^L³⁴⁰^41,^Se^c^tioⁿ⁵⁰^{4 of}^the
^Re^hab^ilit^atio^{n Ac}^t^of¹⁹^73:^Pro^hⁱ^b^itin^{g Disc}^rimin^a^ti^{on A}^g^aⁱ^ns^{t I}ⁿ^dⁱ^vⁱ^du^{als wit}^h^Disa^bilitie^{s i}ⁿ^Pr^og^{rams or Ac}^tiv^itie^s
^R^ecei^viⁿ^g^F^e^d^e^ra^l^A^ssi^st^aⁿ^c^e^,^by^N^a^ncy^Le^e^J^one^s^.
¹²^T^h^e^a^pplic^a^tio^{n of}^Se^c^tio^{n 5}⁰⁴^a^{nd t}^h^e^A^D^A^{to c}^o^lle^g^e^s^a^{nd u}ⁿ^iv^e^r^s^itie^s^is^be^y^{ond the}^s^c^o^p^e^of^this^re^port.
¹³^T^h^e^s^e^re^quire^m^e^{nts inc}^l^u^d^e^the^p^r^ov^ision^of^a^f^r^e^e^a^ppropria^te^p^u^b^lic^e^duc^a^tio^{n i}ⁿ^t^h^e^le^a^s^{t re}^stric^tiv^e^se^tting^.^Se^e³⁴
^C^.^F.R^.^P^a^r^t¹^04,^A^ppx^{. A}^,^Sub^p^a^r^{t D}^.

even if the State of New Mexico declined IDEA funds, Section 504 had essentially the same ¹⁴
requirements as IDEA with regard to the provision of education.
The Americans with Disabilities Act is a broad civil rights statute prohibiting discrimination ¹⁵
against individuals with disabilities. As stated in the act, its purpose is “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with ¹⁶
disabilities.” As with Section 504, the ADA covers far more than K-12 education; it also covers
employment, public services, and public accommodations which include educational facilities.
Like Section 504, the ADA covers colleges and universities but, unlike Section 504, such schools
do not need to be in receipt of federal funds. The ADA was recently amended by the ADA
Amendments Act, P.L. 110-325, which rejects certain Supreme Court interpretations of the ADA ¹⁷
definition of disability. Generally, the ADA and Section 504 are interpreted in the same manner
regarding the coverage of K-12 education. The Department of Education (ED) notes that the
Office of Civil Rights (OCR) enforces both Section 504 and title II of the ADA. “The standards
adopted by the ADA were designed not to restrict the rights and remedies available under Section

504. The Title II regulations applicable to free and appropriate public education issues do not ¹⁸

provide greater protection than applicable Section 504 regulations.”

IDEA Part B covers the education of school-age children, while Part C of IDEA covers infants
and toddlers. IDEA’s Part B requirements apply to children aged three to five and eighteen to
twenty-one to the extent that coverage of these children would not be inconsistent with state law ¹⁹
or practice. Section 504 and the ADA, in contrast, have no age limitations.
One of the most significant differences between IDEA, Section 504, and the ADA is in the
definition of child or individual with disability. IDEA contains a categorical definition while
Section 504 and the ADA have identical functional definitions. The definition for Section 504 and
¹⁴
^New^M^e^xi^co^A^s^so^ci^atⁱ^oⁿ^f^o^{r Ret}^a^rd^ed^Ci^tⁱ^zen^{s v.}^New^M^e^xi^co^,⁶⁷⁸^F^.^2d⁸⁴⁷⁽¹⁰^t^{h Ci}^r.¹⁹⁸²⁾^.^A^l^l^st^at^{es are}
^cu^rren^t^l^y^recei^viⁿ^g^IDE^A^f^unds^.
¹⁵^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^A^D^A^s^e^e^C^R^S^R^e^por^{t 9}⁸^-⁹²¹^,^The^Ame^r^ic^aⁿ^{s with}^Disa^bilitie^s^Ac^{t (}^A^DA):
^S^t^a^t^u^t^o^r^y^L^aⁿ^g^u^a^g^e^aⁿ^d^R^ecen^t^Is^su^es^{, by}^N^a^ncy^L^e^e^J^one^s^.
¹⁶⁴²^U^.^S^.^C^.^§1²¹⁰¹⁽^b⁾⁽¹⁾^.
¹⁷^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^A^D^A^A^m^eⁿ^d^m^eⁿ^ts^A^c^{t s}^e^e^C^R^{S R}^e^por^t^R^L³⁴⁶⁹¹^,^T^h^e^{ADA A}^m^e^ndmeⁿ^{ts Ac}^t:
^{P.L. 11}^0-³²⁵^,^by^N^a^ncy^Le^e^J^one^s^.
¹⁸^htt^p^://w^w^w^.e^d.g^o^v^/^a^bout/of^fⁱ^c^e^s^/lis^t/oc^r^/5^04f^a^q^.htm^l
¹⁹^{20 U}^.^S.C^.^§¹⁴¹²⁽^a⁾⁽¹⁾^.

the ADA is broader than that in IDEA.²⁰ IDEA covers children with specifically listed disabilities
who are in need of special education, while Section 504 and the ADA are more general and
encompass all ages and are not limited to the provision of education. A child who is covered
under IDEA would be covered under Section 504 and the ADA, but some students not covered
under IDEA would be covered under Section 504 and the ADA. Several of the most common
disabilities of students included under Section 504 and the ADA, but not always covered under ²¹
IDEA are attention deficit hyperactivity disorder (ADHD), diabetes, asthma, and dyslexia. It
should also be observed that the number of students covered under IDEA is much larger than ²²
those covered solely under Section 504 and the ADA in K-12 schools.
IDEA defines a child with a disability in the following manner.
^(A^{) In}^g^eⁿ^e^ral
^T^h^{e ter}^m^‘^c^h^ild^w^ith^{a d}ⁱ^sab^ili^t^y^’^m^e^aⁿ^{s a c}^h^ild^—
⁽ⁱ⁾^wⁱ^t^h^me^nt^a^l^r^e^t^a^r^d^a^tⁱ^o^n,^he^a^rⁱⁿ^gⁱ^m^p^aⁱ^r^me^nt^s⁽ⁱ^nc^l^u^dⁱⁿ^g^d^e^a^f^ne^s^s⁾^,^sp^e^e^c^{h o}^r^l^aⁿ^g^u^a^g^e
ⁱ^m^pai^r^m^eⁿ^t^s^,^vⁱ^s^u^a^lⁱ^m^pai^r^men^t^s⁽ⁱⁿ^c^l^u^di^ng^blⁱⁿ^dn^ess⁾^{, seri}^ou^s^e^m^otⁱ^oⁿ^a^l^di^st^u^r^ban^c^e
^(ref^e^{rred t}^oⁱⁿ^t^hⁱ^s^tⁱ^t^l^e^as^‘e^m^o^tⁱ^oⁿ^a^l^di^s^t^u^r^baⁿ^ce’^{), ort}^hopedi^{c i}^m^pai^r^m^eⁿ^t^s^,^a^u^tⁱ^s^m^,
^tr^au^m^a^{tic b}^r^ainⁱⁿ^j^u^r^y^{, o}^t^h^e^r^h^ealthⁱ^m^p^a^ir^m^eⁿ^t^{s, o}^r^sp^ecifⁱ^c^learⁿⁱⁿ^g^dⁱ^sab^ilit^{ies; a}ⁿ^d
⁽ⁱⁱ⁾^w^h^{o, by}^reas^oⁿ^th^ereof^,ⁿ^e^eds^s^p^{ecial edu}^cation^aⁿ^{d related s}^e^rv^ices^.²³
In contrast, the ADA and Section 504 do not list disabilities and define an individual with a
disability in a functional manner. The ADA definition was amended by the ADA Amendments ²⁴
Act of 2008 (ADAAA), P.L. 110-325, and defines the term disability with respect to an
individual as “(A) a physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an impairment; or (C) being regarded ²⁵
as having such an impairment (as described in paragraph (3)).” Although this is essentially the
same statutory language as was in the original ADA, P.L. 110-325 contains new rules of
construction regarding the definition of disability, which provide that
• the definition of disability shall be construed in favor of broad coverage to the
maximum extent permitted by the terms of the act;
• the term “substantially limits” shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act;
• an impairment that substantially limits one major life activity need not limit other
major life activities to be considered a disability;
²⁰
^Mulle^r^v^.^C^o^m^m^{. on S}^p^e^cⁱ^a^l^Ed^u^c^a^{tion of}^Ea^s^t^Es^li^{p U}ⁿⁱ^oⁿ^Fr^e^e^S^c^hool^Dⁱ^s^t^rⁱ^c^t^,¹⁴^{5 F.}^3d⁹⁵^,¹⁰^0,^n.2⁽²^{d C}ⁱ^r^.
¹⁹⁹⁸⁾^.
²¹^R^a^c^h^e^l^A^.^H^o^lle^r^a^nd^P^e^r^r^y^A^.^Zir^k^e^l^{, “}^S^e^c^{tion 5}⁰⁴^aⁿ^d^P^u^blic^Sc^h^ools^:^A^N^a^tiona^l^Sur^v^e^y^C^onc^e^r^ning^‘^S^e^c^tion⁵^04-
^Oⁿ^ly^’^Stude^nts^,^”^{92 N}^A^SS^P^B^u^ll^e^{tin 1}⁹^,²⁸⁽^M^a^r^c^h²⁰⁰⁸⁾^.^T^h^e^s^e^c^ondi^tio^ns^m^a^y^be^c^o^v^e^r^e^{d un}^de^r^I^D^EA^{in s}^o^m^e
^cⁱ^r^c^um^s^t^aⁿ^c^e^s^unde^r^t^h^e^“^o^the^r^he^a^{lth im}^pa^ir^m^e^nt”^c^a^t^e^g^or^y^.^Se^e^{34 C}^.^F.R^.^§³⁰⁰^.⁸⁽^c⁾⁽¹⁰⁾^.
²²^Id.
²³^{20 U}^.^S.C^.^§¹⁴⁰¹⁽³⁾^.
²⁴^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^A^D^A^A^m^eⁿ^d^m^eⁿ^ts^A^c^{t s}^e^e^C^R^{S R}^e^por^t^R^L³⁴⁶⁹¹^,^T^h^e^{ADA A}^m^e^ndmeⁿ^{ts Ac}^t:
^{P.L. 11}^0-³²⁵^,^by^N^a^ncy^Le^e^J^one^s^.
²⁵^P^.^L.¹¹⁰^-³²^5,^§4⁽^a⁾^,^am^en^dⁱⁿ^g⁴²^U.^S^.^C^.^§1²¹⁰²^.

• an impairment that is episodic or in remission is a disability if it would have
substantially limited a major life activity when active; and
• the determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures, except that the ameliorative effects of ordinary eyeglasses or contact ²⁶
lenses shall be considered.
The ADA Amendments Act specifically lists examples of major life activities including caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working. The act also states that a major life activity includes the operation of a major bodily
function.
The Rehabilitation Act is amended by the ADA Amendments Act to reference the definition of
disability in the ADA. The Senate Statement of Managers noted the importance of maintaining
uniform definitions in the two statutes so covered entities “will generally operate under one
consistent standard, and the civil rights of individuals with disabilities will be protected in all ²⁷
settings.” The Senate Statement of Managers also observed the following:
^W^e^ex^p^{ect th}^{at th}^{e Secr}^etar^y^o^f^Ed^u^catioⁿ^w^{ill p}^r^o^m^u^l^g^a^teⁿ^e^w^r^e^g^u^latioⁿ^s^r^e^lated^to^th^e
^d^e^fⁱⁿⁱ^tioⁿ^o^f^dⁱ^sab^ilit^y^to^b^e^coⁿ^sⁱ^s^teⁿ^t^w^ith^t^h^o^s^{e iss}^u^ed^b^y^th^{e A}^tto^rⁿ^e^y^Gen^e^r^a^{l u}ⁿ^d^e^r^th^is
^A^c^{t. W}^e^b^e^liev^e^th^{at o}^t^h^e^r^cu^r^r^en^{t r}^e^g^u^latioⁿ^s^iss^u^ed^b^y^th^{e D}^e^p^a^r^t^m^eⁿ^t^o^f^Ed^u^catioⁿ^O^f^fⁱ^c^e
^of^Cⁱ^v^il^Rⁱ^g^h^t^s^uⁿ^d^{er Sectio}ⁿ^{504 of}^th^{e R}^e^h^a^bilitatioⁿ^A^c^t^{are cu}^rren^tl^y^h^a^r^m^on^io^u^s^wⁱ^th²⁸
^Coⁿ^g^r^e^ssioⁿ^{al i}ⁿ^ten^t^uⁿ^d^e^r^b^o^th^th^e^AD^A^an^d^t^h^{e Re}^h^a^b^ilita^tioⁿ^A^c^t.
The implications of the changes in the definition of disability under Section 504 and the ADA for
the coverage children in K-12 schools is not entirely clear. In Senate hearing testimony, Sue
Gamm, a consultant and former special education chief in Chicago, argued that the change in the ²⁹
definition will greatly expand the number of 504/ADA children, while Jo Anne Simon, Assistant
Professor at Fordham University School of Law, argued that courts generally had not interpreted
the definition of disability in Section 504 and the ADA in a restrictive manner and that “concerns
that the ADAAA will compel schools to provide services to students who don’t really need them ³⁰
are misplaced.” Perry Zirkel, a Lehigh University education and law professor, argues that the
ADAAA would result in more students in K-12 education being given Section 504 plans,
especially students with diabetes, asthma, food allergies, dyslexia, and attention deficit disorder ³¹
(ADD). Another commentator noted that the addition of “reading” in the list of major life
activities may be problematic since “there is no easy way to distinguish children who are unable ³²
to read because they have a disability from those who have simply received poor instruction.”
²⁶
^L^o^w^vi^si^oⁿ^d^e^vi^{ces are n}^o^tⁱⁿ^cl^ud^edⁱⁿ^t^h^{e o}^r^diⁿ^a^ry^e^y^e^g^l^a^ss^{es an}^d^co^nt^act^l^eⁿ^s^excep^tⁱ^o^n.
²⁷¹⁵^{3 C}^O^N^G^{. R}^E^C^.^S.⁸³⁴⁷⁽^S^e^p^t^.^11,²⁰⁰⁸⁾⁽^S^ta^te^m^e^{nt of}^Ma^na^g^e^r^s^{to A}^c^c^o^m^p^aⁿ^y^{S. 340}^{6, t}^h^e^A^m^e^r^ic^aⁿ^s^w^ith
^Disa^bilitie^{s A}^c^t^Am^eⁿ^d^m^eⁿ^{ts Ac}^{t of}²⁰^08).
²⁸^Id.
²⁹^Se^e^Ma^rk^W^.^She^r^m^a^{n, “}^S^eⁿ^a^t^e^Se^e^m^{s W}^illing^{to Re}^vⁱ^se^A^D^A^{in L}ⁱ^g^h^{t of}^Educ^a^t^ors’^Vⁱ^e^w^s,”^{41 E}^DUCAT^I^O^N^D^AI^L^Y
^{2 (}^J^uly^24,²⁰⁰⁸⁾^.
³⁰^htt^p^://^he^lp.s^eⁿ^a^t^e^.^g^o^v^/^H^e^a^r^ing^s^/2⁰⁰⁸^_0^7_¹⁵^/Sim^on.p^d^f^.
³¹^“^A^DA^A^m^e^ndm^eⁿ^ts^B^e^c^o^m^e^Law^,^N^e^w^De^fⁱ^nitions^Ex^paⁿ^d^P^r^ote^c^tion,”^S^EC^TIO^N⁵⁰⁴^C^OM^P^L^I^A^NCE^H^A^N^DBOO^K
⁽^N^ov^{. 20}⁰⁸⁾^.
³²^“^L^is^{t of}^‘Ma^j^{or L}ⁱ^fe^A^c^tiv^itie^s^”ⁱⁿ^A^D^A^{Bill Ra}^is^e^s^Q^u^e^s^tions^A^{bout Re}^a^dⁱⁿ^g^,^”²⁴^T^HE^S^PEC^I^A^L^E^DU^C^A^T^O^R³
⁽^c^onti^nue^d.^..)

IDEA requires that all children with disabilities, including those enrolled by their parents in
private, including religious, elementary and secondary schools, be located, identified, and ³³
evaluated. The Section 504 regulations also contain a requirement that children with disabilities ³⁴³⁵
be identified, located and evaluated. ED’s discussion of these 504 regulations observes that ³⁶
these are basic requirements of both IDEA and Section 504. The ADA statutory and regulatory
requirements do not contain specific provisions detailing requirements for educational facilities.
However, the ADA does state that “[e]xcept as otherwise provided in this Act, nothing in this Act
shall be construed to apply a lesser standard than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issues by Federal agencies ³⁷
pursuant to that title.” Thus, all three statutes appear to have requirements regarding the
identification of children with disabilities, although IDEA contains the most detailed ³⁸
requirements.

IDEA is more detailed in its statutory and regulatory requirements concerning the education of
children with disabilities than Section 504 or the ADA. Litigation regarding educational rights is
more frequent under IDEA. In addition, the fact that IDEA is a grants statute as well as a civil
rights statute means that it is the subject of periodic reauthorization and monitoring which
reinforce institutional attention and compliance. Generally, the basic substantive requirements of ³⁹
IDEA are similar to those in the Section 504 regulations. In its discussion of the Section 504
regulations, ED states that these basic requirements include the provision of a free appropriate
public education, and education with children without disabilities “to the maximum extent

^(...c^on^tin^ue^d)
⁽^O^c^t^obe^r¹⁰^,²⁰⁰⁸⁾^.
³³^{20 U}^.^S.C^.^§¹⁴¹²⁽^a⁾⁽³⁾^.
³⁴^{34 C}^.^F.R^.^§¹⁰⁴^.3^2.
³⁵^{34 C}^.^F.R^.^§¹⁰⁴^.3^5.
³⁶^{34 C}^.^F.R^.^P^a^r^t¹⁰^{4, A}^ppx^{. A}^.
³⁷⁴²^U^.^S^.^C^.^§1²²⁰¹^.^S^{ee a}^l^so^,²⁸^C^.^F.R^.^§3^5.1⁰³⁽^a⁾^;^O^C^R^Seⁿⁱ^or^S^t^a^f^f^Mem^o^r^a^ndum^{, 19 I}^D^EL^R⁸⁵^{9 (}^N^ov^.^19,¹⁹⁹²⁾^,
^w^h^ic^{h s}^t^a^t^e^s^tha^t^“^[^u^]^nlik^e^t^h^e^D^e^pa^r^t^m^e^{nt of}^Educ^a^tion’^s^Se^c^tion⁵⁰⁴^r^e^g^u^la^tio^{n f}^o^r^f^e^de^r^a^ll^y^a^s^sⁱ^s^t^e^d^pr^og^r^a^m^s^{, the}
^T^itle^{II re}^g^u^la^tion^doe^sⁿ^o^t^prov^id^e^s^e^pa^ra^te^c^o^v^e^rag^e^f^o^{r pre}^s^c^hool^,^e^l^em^eⁿ^ta^r^y^{, s}^e^c^onda^ry^a^{nd p}^o^s^t^s^e^c^onda^ry
^e^duc^a^tion^pr^og^r^a^m^s^{. H}^o^w^e^v^e^r^,^the^D^e^pa^r^t^m^e^{nt of}^J^u^s^tic^e⁽^D^O^J⁾^ha^s^c^onf^ir^m^e^{d tha}^t^t^h^e^no^nd^is^c^r^im^ina^t^or^y^pr^ov^is^ions
^unde^{r T}^itle^{II a}^r^e^t^o^be^c^ons^tr^ue^d^{to c}^o^v^e^{r dis}^c^rimⁱ^na^tory^c^onduc^{t t}^h^a^t^is^s^p^e^cⁱ^fⁱ^c^a^l^l^y^prohi^bite^d^un^de^{r Su}^bpa^rts^D^,^E
^a^{nd F}^of^Se^c^tion⁵^04.”
³⁸^{20 U}^.^S.C^.^§¹⁴^14;³⁴^C^.^F.R^.^§³⁰⁰^.³⁰^{0 e}^t^s^e^q.
³⁹^W^.^B^.^v^.^Ma^tula^,⁶⁷^F.3^d⁴⁸^4,⁴⁹^2-⁴^{93 (}³^d^Cⁱ^r^.¹⁹⁹⁵⁾^“^T^he^r^e^a^ppe^a^r^{to be}^f^e^w^dif^f^e^r^eⁿ^c^e^s^{, if}^aⁿ^y^,^be^tw^e^eⁿ^I^D^EA^’^s
^a^f^fⁱ^r^m^a^tiv^e^duty^a^{nd §50}^4’^s^ne^g^a^tⁱ^v^e^pr^ohi^biti^on^.”^{; B}^r^e^nda^{n K}^.^v^.^E^a^s^t^{on A}^r^e^a^Sc^{hool D}ⁱ^s^t^rⁱ^c^t^{, 2}⁰⁰⁷^U^.^{S. D}ⁱ^s^t^{. L}^E^X^I^S
²⁷⁸⁴⁶^(E.D.^P^a^{. A}^p^{ril 1}⁶^,²⁰⁰⁷⁾^“^T^he^s^ubsta^ntiv^e^re^quire^m^e^{nts of}^the^Re^ha^bilita^tⁱ^oⁿ^A^c^{t in the}^e^d^uc^a^tion^c^onte^x^{t a}^r^e
^e^quiv^a^le^{nt t}^o^the^r^e^quir^e^m^e^nts^s^e^{t f}^o^r^t^{h in}^the^I^D^EA^.”

appropriate to their needs.⁴⁰ The ADA, as noted previously, provides that “nothing in this Act
shall be construed to apply a lesser standard than the standards applied under title V of the ⁴¹
Rehabilitation Act ... ”
The core requirement under IDEA is the provision of FAPE.⁴² Each child receiving services under
IDEA must have an individual education program (IEP) spelling out the specific special ⁴³
education and related services to be provided to meet his or her needs. Although a detailed
analysis of the interpretation of FAPE is beyond the scope of this report, it should be noted that
the Supreme Court in Board of Education of the Hendrick Hudson Central School District v. ⁴⁴
Rowley observed that “(i)mplicit in the congressional purpose of providing access to a ‘free
appropriate public education’ is the requirement that the education to which access is provided be ⁴⁵
sufficient to confer some educational benefit upon the handicapped child.” The Court concluded
that “the ‘basic floor of opportunity’ provided by the Act consists of access to specialized
instruction and related services which are individually designed to provide educational benefit to ⁴⁶
the handicapped child.” However, the states are not required to “maximize” each child’s ⁴⁷
potential. If the child is progressing from grade to grade making measurable and adequate gains,
the FAPE requirement is met.
Section 504 and ADA also require the provision of a free appropriate public education⁴⁸ although ⁴⁹
the IDEA regulatory requirements are more detailed. One court has noted that the provision of
FAPE under Section 504 is conceptually different from the provision of FAPE under IDEA.
“While both the Individuals with Disabilities Education Act, ... and section 504 mandate that local
education agencies provide a FAPE to children with disabilities, the scope of protection afforded
under each of these statutes is somewhat different.... Section 504 provides relief from
discrimination, whereas the IDEA provides relief from inappropriate educational placement ⁵⁰
decisions, regardless of discrimination.” Some courts have found that, in order to establish a
Section 504 violation, a plaintiff must demonstrate bad faith or gross misjudgment in addition to ⁵¹
the denial of a FAPE.
An “appropriate education” under Section 504 is defined as the provision of regular or special
education and related aids and services designed to meet individual educational needs of children
⁴⁰
^{34 C}^.^F.R^.^P^a^r^t¹⁰^{4, A}^ppx^{. A}
⁴¹⁴²^U^.^S^.^C^.^§1²²⁰¹^.
⁴²^{20 U}^.^S.C^.^§¹⁴¹²⁽^a⁾⁽¹⁾^.
⁴³^{20 U}^.^S.C^.^§¹⁴¹²⁽^a⁾⁽⁴⁾^;²⁰^U^.^S^.^C^.^§1⁴¹⁴⁽^d)^.
⁴⁴⁴⁵^{8 U}^.^S^.¹⁷⁶⁽¹⁹⁸²⁾^.
⁴⁵^Id^{. a}^t²⁰^0.
⁴⁶^Id^{. a}^t²⁰^1.
⁴⁷^Id^{. a}^t¹⁹^8.
⁴⁸^{34 C}^.^F.R.^§¹⁰⁴^.3^3(a⁾^.^S^{ee a}^l^so^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^Educ^a^tio^{n, O}^f^fⁱ^c^e^f^o^r^Cⁱ^v^{il R}ⁱ^g^h^ts^{, “}^F^r^e^e^A^ppr^op^rⁱ^a^t^e^Publ^ic
^Educ^a^tio^{n f}^o^{r St}^ude^{nts w}^{ith Disa}^bilitie^{s: Re}^q^u^ire^m^eⁿ^ts^Unde^{r Se}^c^t^ion⁵⁰⁴^of^the^Re^ha^bili^ta^tio^{n A}^c^{t of}¹⁹⁷^3,”
^http:^//w^w^w^.e^d.g^o^v^/^a^bout/^o^f^fⁱ^ce^s^/^lⁱ^s^t/oc^r^/d^oc^s^/^e^d^lite^-FA^P^E⁵⁰⁴^.^h^tm^{l; 28}^C.F.R^.^§³⁵^.¹^03(a⁾^.
⁴⁹^{34 C}^.^F.R^.^§³⁰⁰^.1⁰¹^e^t^s^e^q.
⁵⁰^A^.^W^.^v^.^Ma^r^l^bor^oug^{h C}^o^uⁿ^ty^{, 25}^F.S^u^p^p^.2^d^27,³¹^-³^{2 (}^D^{. C}^oⁿⁿ^.¹⁹⁸⁸⁾^.
⁵¹^S^{ee e.}^g^.^,^Mo^na^haⁿ^v^.^Sta^t^e^of^N^e^br^a^s^k^a^{, 687}^F.^2d¹¹^64,¹¹⁷⁰⁽⁸^th^Cⁱ^r^.¹⁹⁸²⁾^.

with disabilities as adequately as the needs of children without disabilities are met and that ⁵²
comply with procedural requirements. Note that IDEA requires the provision of special
education and related services, while Section 504 requires the provision of regular or special
education and related aids and services. Thus, a child with a Section 504 plan could be receiving
a “regular” education with related aids and services, while a child with an IEP under IDEA must
be in receipt of special education. Courts have applied the Rowley standard to Section 504 and
found that an appropriate education is one that is reasonably calculated to enable the child to ⁵³
achieve passing marks and advance from grade to grade.
Section 504, like IDEA, also requires that a child with a disability be placed in the regular
educational environment to the maximum extent appropriate to the needs of the student with a ⁵⁴
disability. Section 504, unlike IDEA, does not require the implementation of an IEP; however,
an IEP developed in accordance with IDEA is one means of meeting the Section 504 ⁵⁵⁵⁶
requirements. The plan developed under Section 504 is often referred to as a “504 plan.”
Unlike IDEA, Section 504 regulations do not provide detailed requirements about how a 504 plan ⁵⁷
is created. For example, IDEA specifies that the IEP team include the child’s parents, while
there is no similar requirement in Section 504 or its regulations.
Section 504 and the ADA contain the requirement of “reasonable accommodation” for purposes ⁵⁸
of determining if there has been discrimination in employment. There is no reasonable
accommodation requirement in IDEA. ED has not read the “reasonable accommodation”
limitation into the Section 504 or ADA Title II regulations on education and has stated,
^A^rea^s^oⁿ^ab^{le acco}^m^m^o^d^a^tioⁿ^li^m^ita^tioⁿ^oⁿ^t^h^{e resp}^oⁿ^sⁱ^b^iliti^{es o}^f^recipⁱ^eⁿ^{ts i}^s^coⁿ^t^ain^e^dⁱⁿ
^S^u^bpart^{B of}^t^h^{e re}^g^u^l^a^tⁱ^oⁿ^,^w^hⁱ^c^{h cov}^e^{rs e}^m^pl^o^y^m^eⁿ^t^.^S^ee^{34 C}^.^F^.^R^.^{§104.12. S}^u^bpart^E,
^w^h^ic^h^co^v^e^r^s^p^o^s^tsecoⁿ^d^ar^y^aⁿ^d^v^o^catioⁿ^a^{l ed}^u^c^a^tioⁿ^,^coⁿ^t^aⁱⁿ^s^{a si}^mⁱ^lar^li^m^itatioⁿ^oⁿ^t^h^e
^recipien^t’s^oblig^a^tion^to^m^o^dⁱ^fy^it^s^acade^m^{ic requ}^ire^m^ent^s^{to e}ⁿ^s^u^{re t}^h^{at t}^h^e^y^{do n}^o^t
^dⁱ^scrⁱ^mⁱⁿ^a^{te o}^r^h^a^v^e^t^h^{e e}^f^f^ect^o^f^dⁱ^scrⁱ^mⁱⁿ^a^tioⁿ^oⁿ^th^{e b}^a^sⁱ^s^o^f^dⁱ^sab^ilit^y^.^I^f^{a r}^ecipⁱ^en^{t can}
^dem^oⁿ^s^trate^t^h^{at a}ⁿ^acade^m^ic^requ^ire^m^{ent i}^s^e^s^s^eⁿ^tial^{to t}^h^e^prog^ra^m^{or i}ⁿ^s^t^ru^ctioⁿ^beiⁿ^g
^p^u^r^s^u^e^d^b^y^t^h^{e st}^u^d^en^t^wⁱ^t^h^{a d}ⁱ^sab^ilit^y^o^r^to^{a d}ⁱ^r^ectly^r^e^lated^licen^sⁱⁿ^g^r^e^q^u^ir^e^m^eⁿ^t,^f^a^il^u^r^e
^t^o^m^odi^fy^t^h^{e requ}ⁱ^r^e^m^eⁿ^t^wⁱ^l^lⁿ^o^t^{be reg}^a^{rded as}^di^s^c^ri^mⁱ^nat^o^ry^.^S^{ee 34 C}^.^F^.^R^§104.44.
^Su^c^h^li^m^itatⁱ^on^s^{are n}^o^{t contain}^e^{d i}ⁿ^S^u^{bpart D, cov}^e^ring^ele^m^entar^y^aⁿ^{d s}^econ^d^ar^y
^edu^cation^.^W^e^con^c^lu^{de t}^h^{erefore th}^{at t}^h^{e re}^g^u^l^at^ion^w^rⁱ^t^ersⁱⁿ^teⁿ^d^{ed to create a diff}^ereⁿ^t
^s^t^an^{dard f}^o^{r ele}^m^eⁿ^tar^y^an^{d s}^econ^d^ar^y^s^t^u^d^en^t^s^th^an^f^o^{r e}^m^plo^y^ees^o^r⁵⁹
^pos^ts^econ^d^ar^y^/^v^o^cation^a^{l s}^t^u^d^en^ts^.
⁵²
^{34 C}^.^F.R^.^§¹⁰⁴^.3³⁽^b)⁽¹⁾^.
⁵³^S^{ee e.}^g^.^,^Mo^lly^L^.^v^.^L^o^w^e^r^Me^rⁱ^on^Sc^ho^{ol D}ⁱ^s^t^rⁱ^c^t^,¹⁹⁴^F.S^u^p^p^.2^d⁴²^2,⁴²^{8 (}^E^.D^.^P^a^.²⁰⁰²⁾^.
⁵⁴^{34 C}^.^F.R^.^§¹⁰⁴^.3^{4 (}^S^e^c^tion⁵⁰⁴⁾^;^{20 U}^.^S.C^.^§¹⁴¹²⁽^a⁾⁽⁵⁾⁽^I^D^EA⁾^.
⁵⁵^{34 C}^.^F.R^.^§¹⁰⁴^.3³⁽^b)⁽²⁾^.^Se^e^a^l^s^o^C^o^r^e^y^H^.^Ex^r^e^{l. B}^.^H^.^v^.^C^a^pe^H^e^nlopeⁿ^Sc^h^ool^Dⁱ^s^t^rⁱ^c^t^,2⁸⁶^F.S^upp^.2^{d 3}⁸⁰
⁽^D^.D^e^l^{. 20}⁰³⁾^{, w}^h^ic^{h he}^l^d^t^h^a^t^if^the^dis^t^rⁱ^c^t^ha^d^pr^ovⁱ^d^e^d^t^h^e^s^t^u^d^eⁿ^{t w}^{ith FA}^P^E^u^nde^r^I^D^EA^{, it}^ha^s^{not v}ⁱ^ola^t^e^d
^Se^c^{tion 50}^4.
⁵⁶^Se^e^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^Educ^a^tio^{n, O}^f^fⁱ^ce^f^o^r^Cⁱ^v^{il R}ⁱ^g^h^ts^{, “}^F^r^e^qu^eⁿ^tly^A^s^k^e^{d Q}^u^e^s^tions^A^bou^{t Se}^c^tion⁵^{04 a}^{nd t}^h^e
^Educ^a^tioⁿ^of^Childreⁿ^w^{ith D}ⁱ^s^a^b^ilitie^s^”^htt^p^://w^w^w^.e^d.g^o^v^/^a^bout/of^fⁱ^c^e^s^/lis^t/oc^r^/504f^a^q^.h^tm^l.
⁵⁷^{34 C}^.^F.R^.^§¹⁴¹⁴⁽^d)⁽¹⁾⁽^B⁾^.
⁵⁸^{42 U}^.^S.C^.^§¹²¹¹¹⁽⁹⁾⁽^A^D^A⁾^;²⁸^C^.^F.R^.^§4^1.5³⁽^S^e^c^tion⁵⁰⁴⁾^.
⁵⁹^L^e^tte^r^{to Zir}^k^e^l^{, U}^.^{S. D}^e^pa^r^t^m^e^{nt of}^Educ^a^tio^{n, O}^f^fⁱ^c^e^f^o^r^Cⁱ^v^{il R}ⁱ^g^h^ts^{, 20}^I^D^EL^R¹³^{4 (}^A^ug^us^{t 23}^,¹⁹⁹³⁾^.^R^e^prⁱⁿ^te^d
^a^t^http^://w^ww^.due^proc^e^ssillinois.^org^/^zⁱ^rk^e^l^.htm^l.

The Department of Education has also examined the issue of whether students with disabilities
can be denied access to accelerated programs such as Advanced Placement and International
Baccalaureate classes. ED found such a denial violates Section 504, the ADA, and IDEA.
Although schools may have eligibility requirements for such courses, ED stated: “[i]t is unlawful
to deny a student with a disability admission to an accelerated class or program solely because of ⁶⁰
that student’s need for special education or related aids and services.”

The law concerning when a child with a disability may be subject to disciplinary procedures for a
violation of a code of student conduct is complex and complicated. Generally, under IDEA a child
with a disability is not immune from disciplinary procedures; however, these procedures are not ⁶¹
identical to those for children without disabilities. If a child with a disability commits an action
that would be subject to discipline, school personnel have several options. A child with a
disability who violates a code of student conduct may be removed from her current placement to
another setting or suspension for up to 10 school days; the child may be placed in an interim
alternative education setting for up to 45 school days for situations involving weapons, drugs, or
if the student has inflicted serious bodily injury upon another person while at school; and a
hearing officer may be asked to order a child be placed in an interim alternative educational
setting for up to 45 school days if the hearing officer determines that maintaining the current ⁶²
placement of the child is substantially likely to result in injury to the child or others. If the local
educational agency (LEA) seeks to change the placement of a child with a disability because of a
violation of a code of student conduct either on an interim basis or on a long-term basis (except
for a 10-day suspension), a manifestation determination review must be conducted to determine
whether the conduct in question was caused by, or had a direct and substantial relationship to, the
child’s disability or was the direct result of the LEA’s failure to implement the IEP. If the child’s
behavior is not a manifestation of a disability, long-term disciplinary action such as expulsion ⁶³
may occur, except that educational services may not cease.
The issue of whether these detailed IDEA requirements are also required by Section 504 and the
ADA is not clear. The Section 504 regulations require a system of procedural safeguards and note
that compliance with the procedural safeguards of IDEA as described above is one means of ⁶⁴
meeting the Section 504 requirement. However, this does not mean that all the IDEA
requirements are therefore required under Section 504. In Cenntenial School District v. Phil L. ⁶⁵
and Lori L. ex. rel Matthew L., the court held that “[a]lthough students qualifying under the
⁶⁰
^{Dear Co}^lleag^u^e^L^e^tter:^A^c^c^e^{ss b}^y^Stu^d^eⁿ^t^{s w}^ith^Disab^{ilities t}^o^A^ccelerated^P^r^o^g^ram^s^{, O}^f^fⁱ^ce^f^o^{r Civ}^{il Rig}^h^ts,
^D^e^pa^rtm^e^{nt of}^Educ^a^tio^{n (D}^e^c^.²⁶^{, 2}⁰⁰⁷⁾^htt^p^://w^w^w^.e^d.g^o^v^/^a^bout/of^fⁱ^ce^s^/lis^t/oc^r^/le^tte^rs^/c^olle^a^g^ue^-200⁷¹²²^6.^htm^l^.
⁶¹^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^dis^c^ipli^ne^is^s^u^e^sⁱⁿ^c^l^ud^ing^the^Su^pr^e^m^e^C^our^t’^s^de^cⁱ^sⁱ^on^{in H}^onig^v^.^D^o^e^,⁴^{84 U}^.^S.
³⁰⁵⁽¹⁹⁸⁸⁾^{, s}^e^e^C^R^S^R^e^p^o^r^t^R^L³²⁷⁵^3,^In^divⁱ^d^{uals wi}^{th Dis}^abil^itie^{s Educ}^a^tio^{n Ac}^{t (}^I^{DEA): Disc}^ipli^ne^Prov^isio^{ns in}
^{P.L. 10}^8-⁴⁴⁶^,^by^N^a^ncy^Le^e^J^one^s^.
⁶²^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^k⁾^.
⁶³^Id.
⁶⁴^{34 C}^.^F.R^.^§¹⁰⁴^.3^6.
⁶⁵⁵⁵^{9 F}^.^Su^pp^.2^{d 6}³⁴⁽^E^.D^.^P^a^.²⁰⁰⁸⁾^.

Rehabilitation Act are afforded some procedural protections–namely a Section 504 hearing–they ⁶⁶
are not afforded the specific protection of a ‘manifestation determination’ under the IDEA.”
Although neither the statutory language nor the regulations under Section 504 or the ADA discuss
disciplinary issues, the Department of Education has discussed disciplinary issues under these
statutes. The Department has stated:
^As^uⁿ^d^{er t}^h^{e IDE}^A^,^Sectioⁿ^{504 an}^{d T}^{itle II of}^th^e^A^D^{A prov}^{ide th}^at^s^t^u^d^en^t^s^w^hos^e
^mⁱ^scoⁿ^d^u^{ct i}^sⁿ^o^{t r}^e^lated^to^th^eir^dⁱ^sab^{ilities ca}ⁿⁿ^o^{t b}^e^ex^p^e^ll^ed^o^r^su^sp^en^d^e^d^f^o^r^m^o^r^e^th^aⁿ
^{10 day}^s^{. Ho}^w^e^v^e^{r, t}^h^{e Depart}^m^e^nt^h^a^s^ta^k^e^{n t}^h^e^vⁱ^e^w^th^at^dis^t^ricts^ca^{n ceas}^{e prov}^idiⁿ^g
^ed^u^catioⁿ^a^{l ser}^v^{ices to}^s^t^u^d^eⁿ^{ts u}ⁿ^d^e^r^th^o^s^{e la}^w^s^{, i}^fⁿ^oⁿ^d^is^ab^led^stu^d^en^t^s^w^o^u^l^d^also^b^e⁶⁷
^ref^u^s^e^{d edu}^cation^a^{l s}^e^r^v^ices^un^{der s}ⁱ^mⁱ^{lar circum}^s^t^aⁿ^ces^.

The involvement of parents in the education of their children is a key policy in IDEA, Section
504, and the ADA; however, IDEA contains the most detailed provisions relating to parental
rights. IDEA specifically states that one of its purposes is to ensure that the rights of children with ⁶⁸
disabilities and parents of such children are protected.” The Supreme Court in Winkelman v. ⁶⁹
Parma City School District found that the establishment of procedural rights was required “to
ensure that the rights of children with disabilities and parents of such children are protected.”
These provisions were found to support the finding that the parents of a child with a disability
have “a particular and personal interest” in the goals of IDEA and that “IDEA includes provisions
conveying rights to parents as well as to children.”
More specifically, some of the parental rights under IDEA include the right to request an initial ⁷⁰
evaluation of consent to the evaluation if requested by the LEA, the right to “informed consent” ⁷¹⁷²
before IDEA services are initiated, the right to be part of the IEP team, the right to review their ⁷³⁷⁴
child’s records, and rights to notification. The Section 504 requirements regarding parental ⁷⁵
rights are less detailed and specifically include notification, and the right to examine relevant ⁷⁶
records. However, the Section 504 regulations do not specifically include the parents as part of
⁶⁶
^Id^{. a}^t⁶⁴^6.^S^{ee a}^l^s^o^Ty^lic^kⁱ^v^.^Ste^pheⁿ^{St. O}ⁿ^g^e^{, 20}⁰⁸^U^.^S.^A^{pp. L}^E^XI^S²³³^{42 (}²^d^Cⁱ^r^.^O^c^to^be^r²⁸^,²⁰⁰⁸⁾^.
⁶⁷^O^S^E^P^Me^m^o^r^a^ndum^95-¹⁶^{, 2}²^I^D^EL^R^{531 (}^A^pr^il^26,¹⁹⁹⁵⁾^.^A^lth^oug^{h t}^h^is^Me^m^o^r^a^nd^um^dis^c^us^s^e^{s I}^D^EA
^dis^c^ipli^na^r^y^pr^oc^e^dur^e^s^prⁱ^o^r^to^th^e¹⁹⁹^{7 (}^P^.L^{. 10}^5-¹⁷⁾^aⁿ^d²⁰^{04 (}^P^.L^{. 108-}⁴⁴⁶⁾^r^e^a^u^t^hor^iz^a^tⁱ^ons^aⁿ^d^doe^s^{not r}^e^f^l^e^c^t
^t^h^{e ext}^eⁿ^sⁱ^v^{e a}^m^en^d^m^en^t^s^Coⁿ^g^ress^m^a^d^e^t^o^t^h^{ese sect}ⁱ^oⁿ^s^,ⁱ^t^w^o^ul^d^app^{ear t}^h^at^t^h^{e i}ⁿ^t^e^rp^ret^a^tⁱ^oⁿ^o^f^S^ectⁱ^o^{n 50}⁴^and
^t^h^{e A}^D^A^h^a^{s n}^o^t^ch^an^gedⁱⁿ^t^hⁱ^s^area.
⁶⁸^{20 U}^.^S.C^.^§¹⁴⁰⁰⁽^d)⁽²⁾^.
⁶⁹⁵⁵^{0 U}^.^S^.⁵¹⁶⁽²⁰⁰⁷⁾^.
⁷⁰²⁰^U^.^S.C.^§¹⁴¹⁴⁽^a)(1^)(D).
⁷¹²⁰^U^.^S.C.^§¹⁴¹⁴⁽^a)(1^)(D)(II)^.
⁷²²⁰^U^.^S.C.^§¹⁴¹⁴⁽^d⁾⁽¹^)(B).
⁷³^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^b)⁽¹⁾^.
⁷⁴^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^b)⁽³⁾^.
⁷⁵^{34 C}^.^F.R^.^§¹⁰⁴^.3^2.
⁷⁶^{34 C}^.^F.R^.^§¹⁰⁴^.3^6.

the team determining placement decisions.⁷⁷ The due process procedures also contain parental
rights, but are discussed in the subsequent section.

IDEA’s remedy provisions are much more detailed than those in Section 504 or the ADA. IDEA
contains detailed provisions that explain the remedies that are available for children with
disabilities and their parents. Complaints may be filed with the local education agency (LEA), the ⁷⁸
state education agency (SEA), or both.
Complaints filed with the LEA must be presented within two years of the date the parent or LEA
knew or should have known about the incident that is the subject of the complaint or within a ⁷⁹
state’s timeline if that is explicit. These complaints can be resolved through a resolution ⁸⁰⁸¹⁸²⁸³
session, mediation, an impartial due process hearing, or litigation. The parties must first try
to resolve the dispute through a resolution session unless they agree in writing to waive the ⁸⁴
session or agree to mediation. If the complaint is not resolved, then the parties may have an ⁸⁵
impartial due process hearing. The parties have the right to appeal the hearing officer’s decision
to federal district court, but all of the available administrative remedies must be exhausted prior to ⁸⁶
filing suit. This action must be brought within 90 days of the hearing officer’s decision or within ⁸⁷
a state’s timeline if that is explicit. As part of its decision, the court may award reasonable ⁸⁸⁸⁹
attorneys’ fees. Notice of these remedies must be given to the parents at least once a year.
Complaints filed with the SEA must be presented within one year of the date of the incident that ⁹⁰⁹¹
is the subject of the complaint. A copy of the complaint must be forwarded to the LEA. Within
60 days of the filing of the complaint, the SEA must carry out its own investigation, give the
complainant opportunity to provide additional information about the complaint, provide the LEA
with opportunities to respond to the complaint (including voluntary mediation), and review all ⁹²
information and issue a written decision. This deadline may be extended under exceptional
⁷⁷
^Se^e³⁴^C^.^F.R^.^§¹⁰⁴^.^35.
⁷⁸^I^D^EA^a^l^s^o^c^ontaⁱ^ns^de^ta^ile^{d pr}^ov^is^ions^f^o^r^f^e^de^r^a^{l a}^{nd s}^t^a^t^e^m^onito^rⁱ^ng^.^Se^e²⁰^U^.^S^.^C^.^§1⁴¹^6.
⁷⁹²⁰^U^.^S.C.^§¹⁴¹⁵⁽^b⁾⁽⁶^)(B);³⁴^C.^{F.R. §}³⁰⁰^.⁵⁰⁷^(a)(2^).^Deta^ile^{d re}^q^u^ire^m^eⁿ^ts^f^o^{r the}^c^o^nteⁿ^ts^of^the^c^o^m^p^la^{int a}^r^e
^liste^{d in}^the^sta^t^ute^aⁿ^d^the^re^g^u^la^tions.^Se^e²⁰^U^.^S^.^C^.^§1⁴¹⁵⁽^b)⁽⁶⁾^-⁽⁷⁾^;³⁴^C^.^F.R^.^§3⁰⁰^.5⁰⁸⁽^b)^.
⁸⁰^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^f⁾⁽¹⁾⁽^B⁾^;^{34 C}^.^F.R^.^§³⁰⁰^.⁵¹⁰^.
⁸¹^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^e⁾^;^{34 C}^.^F.R^.^§³⁰⁰^.5^06.
⁸²^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^f⁾^{; 3}⁴^C^.^F^.^R^.^§§³⁰⁰^.5^11-^.51⁶^.
⁸³^{20 U}^.^S.C^.^§¹⁴¹⁵⁽ⁱ⁾⁽²⁾^;^{34 C}^.^F.R^.^§§³⁰^0.5^16-⁵¹^7.
⁸⁴^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^f⁾⁽¹⁾⁽^B⁾⁽ⁱ⁾^;³⁴^C^.^F.R^.^§3^00.⁵¹⁰⁽^a⁾^;^{34 C}^.^F.R^.^§³^00.⁵¹⁰⁽^c⁾^.
⁸⁵^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^f⁾⁽¹⁾⁽^B⁾⁽ⁱⁱ⁾^;³⁴^C^.^F.R^.^§3^00.⁵¹⁰⁽^b)⁽¹⁾^.
⁸⁶^{20 U}^.^S.C^.^§¹⁴¹⁵⁽ⁱ⁾⁽²⁾⁽^A⁾^;^{34 C}^.^F.R^.^§³⁰⁰^.⁵¹⁶^.
⁸⁷^{20 U}^.^S.C^.^§¹⁴¹⁵⁽ⁱ⁾⁽²⁾⁽^B⁾^;^{34 C}^.^F^.^R^.^§³⁰⁰^.5¹⁶⁽^b)^.
⁸⁸^{20 U}^.^S.C^.^§¹⁴¹⁵⁽ⁱ⁾⁽³⁾^;^{34 C}^.^F.R^.^§3^00.⁵¹^{7. T}^h^e^s^e^pr^ov^is^ions^doⁿ^o^{t a}^f^f^e^c^t^the^Dⁱ^s^t^rⁱ^c^t^of^C^o^lum^b^ia^A^ppr^opr^ia^ti^ons
^A^c^{t, 2005,}^w^h^ic^{h ha}^s^its^ow^{n pr}^o^vⁱ^sⁱ^{on f}^o^r^a^w^a^r^ding^a^ttorⁿ^e^y^s^’^f^e^es^un^de^r^I^D^EA^{. 20 U}^.^S.C^.^§1⁴¹⁵⁽ⁱ⁾⁽³⁾⁽^B⁾⁽ⁱⁱ⁾^.
⁸⁹^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^d)⁽¹⁾^;³⁴^C^.^F^.^R^.^§3⁰⁰^.5^04.
⁹⁰^{34 C}^.^F.R^.^§³⁰⁰^.1⁵³⁽^c⁾^.^T^h^e^r^e^g^u^la^tions^lis^t^de^ta^ile^d^r^e^quir^e^m^e^nts^f^o^r^the^c^onteⁿ^ts^of^the^c^o^m^p^la^int.^{34 C}^.^F.R^.
^§30^0.¹⁵^3.
⁹¹^{34 C}^.^F.R^.^§³⁰⁰^.1⁵³⁽^d)^.
⁹²^{34 C}^.^F.R.^§³⁰⁰^.1⁵²^.

circumstances or by agreement between the parents and the LEA.⁹³ If a complaint raises an issue
that is already subject to a due process hearing with the LEA, the SEA must set aside that issue ⁹⁴
until the conclusion of the hearing. If an issue has already been decided in a due process ⁹⁵
hearing, the SEA is bound by that decision.
The remedy provisions in Section 504 and the ADA do not offer as many options for resolving
complaints as found in IDEA. Section 504 regulations do require several procedural safeguards
that are similar to IDEA provisions, including notice, an opportunity to examine relevant records,
an impartial hearing that includes the opportunity to be represented by counsel, and a review ⁹⁶
procedure, but the ADA does not have any similar provisions. Both Section 504 and the ADA
allow parties to file complaints with the respective agencies that oversee the statute’s
enforcement, but neither statute creates a state complaint system similar to the system found in
IDEA. The parties generally have much less time in which to file their complaints than they have
under IDEA: under both statutes, the parties must file a complaint within 180 days of the alleged ⁹⁷
discrimination, unless the deadline is extended for good cause. Section 504 and ADA also create
an administrative remedies process that, similar to IDEA, involves attempts at resolution
throughout the process. For a Section 504 complaint, if OCR concludes that a school district is
out of compliance, it first will attempt negotiation with the school district to bring it into ⁹⁸
compliance. If negotiation is not successful, OCR may terminate the school district’s federal ⁹⁹
funding or refer the case to DOJ for judicial proceedings. If the party is not satisfied with OCR’s ¹⁰⁰
initial determination, it may appeal to the Deputy Assistant Secretary for Enforcement. For a
complaint filed under the ADA, the Department of Education shall attempt informal resolution of
the complaint, and, if the resolution attempt is unsuccessful, the agency shall issue a Letter of ¹⁰¹
Findings. If noncompliance is found, the agency shall resolve the matter by either securing ¹⁰²
voluntary compliance through a written agreement or, if voluntary compliance is unsuccessful, ¹⁰³
referring the matter to the Attorney General with its recommendations. However, unlike IDEA,
neither Section 504 nor the ADA requires mediation or other alternative means of dispute ¹⁰⁴
resolution.
⁹³
^{34 C}^.^F.R^.^§³⁰⁰^.1⁵²⁽^b)⁽¹⁾^.
⁹⁴^{34 C}^.^F.R^.^§³⁰⁰^.1⁵²⁽^c⁾⁽¹⁾^.
⁹⁵^{34 C}^.^F.R^.^§³⁰⁰^.1⁵²⁽^c⁾⁽²⁾^.
⁹⁶^{34 C}^.^F.R^.^§¹⁰⁴^.3^6.
⁹⁷^Se^c^tion⁵^{04 c}^o^m^p^la^{ints a}^r^e^f^ile^d^w^{ith OCR, usua}^lly^throu^{gh t}^h^{e sc}^h^o^o^l^di^st^ri^ct^{’s S}^ectⁱ^oⁿ⁵⁰^{4 o}^f^fⁱ^cer^.^S^{ee Ho}^w^t^o^Fⁱ^l^e
^a^Dⁱ^s^c^ri^mⁱ^na^{tion Cla}ⁱ^m^w^{ith the}^O^f^fⁱ^ce^f^o^{r Civ}^{il Rig}^h^ts^{, htt}^p^://w^w^w^.e^d.g^o^v^/^a^bout/of^fⁱ^c^e^s^/lis^t/oc^r^/do^c^s^/^how^to.htm^l.
^A^D^A^c^o^m^p^la^{ints re}^la^te^{d to d}ⁱ^sc^rimⁱ^na^{tion in e}^duc^a^tio^{n a}^r^e^f^ile^{d g}^e^ne^r^a^lly^w^{ith the}^D^e^pa^r^t^m^e^{nt of}^Educ^a^tio^n,^but^the
^r^e^g^u^la^tions^d^o^not^m^e^{ntion a}^s^p^e^c^if^ic^de^pa^r^t^m^e^{nt or}^of^fⁱ^c^e^w^h^e^r^e^they^s^hould^be^f^ile^d.^{28 C}^.^F.R^.^§^35.¹⁷⁰^{; 2}⁸^C^.^F.R^.
^§35^.1⁹⁰⁽^b)⁽²⁾^.
⁹⁸^Se^e^Fr^e^que^ntly^A^s^k^e^{d Q}^u^e^s^tions^A^{bout Se}^c^tio^{n 5}⁰⁴^aⁿ^d^the^E^duc^a^tion^of^C^h^il^dr^eⁿ^w^{ith D}ⁱ^s^a^bili^tie^s^,
^http:^//w^w^w^.e^d.g^o^v^/^a^bout/^o^f^fⁱ^ce^s^/^lⁱ^s^t/oc^r^/5^04f^a^q^.htm^l.
⁹⁹^Id^.
¹⁰⁰^Id^.
¹⁰¹^{28 C}^.^F.R^.^§^35.¹⁷^2.
¹⁰²^{28 C}^.^F.R^.^§^35.¹⁷^3.
¹⁰³^{28 C}^.^F.R^.^§^35.¹⁷^4.
¹⁰⁴^{OCR m}^a^y^“^f^a^c^ilita^te^”^m^e^dia^tion.^Se^e^Fr^e^que^ntly^A^s^k^e^{d Q}^u^e^s^tions^A^{bout Se}^c^tio^{n 5}⁰⁴^aⁿ^d^the^E^duc^a^tion^of^C^h^il^dr^eⁿ
^w^{ith D}ⁱ^s^a^bilitie^s^,^ht^tp:/^/w^w^w^.e^d.gov^/a^bou^t/of^fⁱ^c^e^s^/lis^t/oc^r^/504f^a^q^.ht^m^l.^T^h^e^A^D^A^eⁿ^c^oura^g^e^s^the^us^e^of^a^lte^rna^tiv^e
^m^e^aⁿ^s^of^dis^pute^r^e^s^o^l^u^tio^n.²⁸^C^.^F.R^.^§3^5.1⁷⁶^.

Although the remedy provisions in Section 504 and the ADA do not contain as many options for
resolving complaints as IDEA, Section 504 and the ADA do allow parties to file a private right of
action far earlier in the resolution process than is allowed under IDEA. Under both Section 504
and the ADA, a party may file a private right of action at any time without exhausting ¹⁰⁵
administrative remedies. Additionally, the statutes permit the court to award reasonable ¹⁰⁶
attorneys’ fees to the prevailing party. However, despite these provisions, multiple appellate
courts have held that parties must exhaust all administrative remedies for claims brought under ¹⁰⁷
Section 504 or the ADA when those claims could have been brought under IDEA. The courts ¹⁰⁸
have all cited to IDEA’s statutory language in 20 U.S.C. §1415(l), noting that the law requires
parties “seeking relief that is also available” under IDEA to exhaust their remedies under IDEA
prior to bringing suit under Section 504 or the ADA. This exhaustion is limited to claims that
would seek relief that is available under IDEA; however, the court in Charlie F. v. Board of
Education of Skokie School District 68 noted that this “available relief” may be “relief for the
events, condition, or consequences of which the person complains, not necessarily relief of the ¹⁰⁹
kind the person prefers.” In other words, a party cannot bring a claim under Section 504 or the
ADA that also would fall under IDEA solely because the party can receive relief under Section

504 or the ADA that is not available under IDEA (such as compensatory damages).

^N^a^nc^y^Le^e^J^o^ne^s ^Car^o^{l J}^.^T^o^lan^d
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
ⁿ^j^on^es^@^c^r^s^.l^oc.g^ov^{, 7-}⁶⁹⁷⁶^ct^ol^an^d@^crs^.^l^o^c.g^o^v^,^7-⁴⁶⁵⁹

¹⁰⁵
²⁹^U^.^S.C.^§⁷⁹⁴^a(a)(2^{); 4}²^U.^S.C.¹²¹³³^(ref^e^rrin^g^to²⁹^U.S^.^C.^§⁷⁹⁴^a^(a)(2^)).
¹⁰⁶^{29 U}^.^S.C^.^§⁷⁹⁴^a⁽^b)^;^{42 U}^.^S.C^.¹²¹³^{3 (}^r^e^f^e^r^rⁱ^ng^to^{29 U}^.^S.C^.^§7⁹⁴^a⁽^b)⁾^;²⁸^C^.^F^.^R^.^§3^5.1⁷⁵^.
¹⁰⁷^S^ee,ⁱ^.^e.^,^J^.^P^.^v^.^C^h^e^r^ok^e^e^C^o^uⁿ^ty^B^o^a^r^d^of^Educ^a^tio^n,²¹^{8 Fe}^{d. A}^ppx^{. 91}^{1 (}^11t^{h C}ⁱ^r^.²⁰⁰⁷⁾^;^W^e^be^r^v^.^C^r^aⁿ^s^t^on
^Sc^hoo^{l C}^o^m^m^itte^e^,^{212 F.}^3d⁴¹⁽¹^s^t^Cⁱ^r^.²⁰⁰⁰⁾^{; C}^h^a^r^lie^{F. v}^.^B^o^a^r^{d of}^Ed^uc^a^tion^of^Sk^ok^ie^Sc^ho^ol^Dⁱ^s^t^rⁱ^c^t⁶⁸^{, 9}⁸^F^.³^d
⁹⁸⁹⁽⁷^t^h^Cⁱ^r^.¹⁹⁹⁶⁾^;^H^ope^v^.^C^o^r^t^ine^s^{, 6}⁹^F.^3d⁶^{87 (}²^d^Cⁱ^r^.¹⁹⁹⁵⁾^.
¹⁰⁸^P^r^ior^to^the¹⁹⁹^{7 a}^m^e^ndm^eⁿ^ts^{to I}^D^EA^{, this}^la^ng^ua^g^e^w^a^s^f^oundⁱⁿ^{20 U}^.^S.C^.^§¹⁴¹⁵⁽^f⁾^{. A}^t^tha^t^tim^e^the^s^t^a^t^ute
^re^fe^re^nc^e^d^the^Const^itutⁱ^oⁿ^{, t}^h^e^R^e^ha^bilita^ti^{on A}^c^{t, a}^nd^ot^he^{r sta}^t^ut^e^s^prote^c^ting^c^h^il^dreⁿ^a^{nd y}^out^h^w^{ith disa}^bilitie^s,
^but^{it d}ⁱ^d^no^{t spe}^cⁱ^fⁱ^c^a^l^l^y^m^e^ntion^the^Am^e^r^ic^aⁿ^s^w^{ith Di}^sa^bilitie^s^A^c^t.^T^h^e¹⁹⁹^{7 a}^m^e^ndm^eⁿ^{ts c}^h^aⁿ^g^e^{d the}^la^w^to
^inc^l^u^d^e^the^A^m^e^r^ic^aⁿ^s^w^{ith Disa}^bilitie^{s A}^c^{t a}^nd^re^loc^a^t^e^d^t^h^e^pr^ov^{ision t}^o^su^bse^c^tion^(l).^Se^e^P^.^L^.¹⁰⁵^-1^{7. T}^h^{is se}^c^tion
^w^a^s^{not a}^m^e^nde^{d by}^the²⁰⁰⁴^r^e^a^u^th^or^iz^a^tio^{n of}^I^D^EA^{, P}^.^L^.¹⁰^8-⁴^46.
¹⁰⁹⁹⁸^F.^{3d a}^t⁹⁹^2.