Understanding Federal Disability Laws

Parents often ask us to explain the differences between the IDEA (Individuals with Disabilities Education Act) and Section 504 (of the Rehabilitation Act of 1973). And, for post-high school students who are no longer eligible under the IDEA, we get similar questions about the Americans with Disabilities Act (ADA). We've written about each of these laws numerous times in our more than 900 posts, often comparing and contrasting them. You can use the search feature on the right hand side of this page to search the "tag" for each law.

A 2016 Arizona case that ended up in the U.S. Court of Appeals for the Ninth Circuit contains a helpful explanation comparing and contrasting these several laws. Thanks to attorney Pete Wright for bringing it to the attention of his colleagues. The excerpts from the Circuit Court decision appear without quotation marks, citations, or footnotes, and we have added in headings to make it easier to read. You can see properly formatted text in the full court decision.

The Circuit Court explained:

There are three primary and overlapping pieces of federal legislation... The IDEA, Section 504 of the Rehabilitation Act, and Title II of the ADA.

The IDEA
Congress enacted the IDEA to ensure that all children with disabilities have available to them a free appropriate public education [or FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. The IDEA focuses on making a FAPE available to disabled students through development of Individualized Education Programs (IEPs). States receiving federal financial assistance under the IDEA must have in place policies and procedures to properly develop IEPs for qualifying children.

Section 504

Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. It provides that no otherwise qualified individual with a disability . . . 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
Like the IDEA, section 504 applies to public schools that receive federal financial assistance ...
The regulations adopted pursuant to section 504 require qualifying public schools to provide a free appropriate public education to each qualified handicapped person.

How FAPE Differs Under Each Law
FAPE is defined differently for purposes of section 504 than it is for the IDEA. Under ... section 504 regulations, FAPE requires "regular or special education and related aids and services that
(i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and
(ii) are based upon adherence to procedures that satisfy the requirements of [the law]".
Section 504's regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled. One method of ensuring that the educational aids and services are designed to meet individual education needs as required under [504] is to implement an IEP developed in accordance with the IDEA, but a showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under section 504.

The ADA
Title II of the ADA was modeled after section 504.... It provides that 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.
[Both Section 504 and the ADA include the right to sue for damages. However, a public entity can be liable for damages under § 504 (or the ADA) only] if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.

While the IDEA remains the best option for many of the students we see, it is important to be aware that there are other federal laws that can help students -- and all individuals -- get the help they need to overcome their challenges. 

Supreme Court Hands Win to Students with IEPs

Yesterday, in a unanimous decision, the U.S. Supreme Court rejected the findings of the Tenth Circuit Court of Appeals (whose members currently include Neil Gorsuch, who has been nominated to fill the vacancy on the Supreme Court bench) that the Individuals with Disabilities Education Act (IDEA) requires that students entitled to special education receive an “educational benefit [that is] merely . . . more than de minimis.”

We have written previously about this case, Endrew F., and looked at how courts have interpreted the requirements of the IDEA that students receive FAPE - a free, appropriate, public education. The questions for courts over the years have focused on the meaning of "appropriate" and looked at what schools were required to do for students who qualified for special education under the IDEA. 

The seminal case on this question was Rowley, which we examined in this blog almost seven years ago. In yesterday's decision, the Supreme Court looked back at Rowley and noted that it involved a student who was in a regular classroom, doing well, and able to participate in tests to measure her progress. The Justices noted, 

 “Rowley sheds light on what appropriate progress will look like in many cases: For a child fully integrated in the regular classroom, an IEP typically should be 'reasonably calculated to enable the child to achieve passing marks and advance from grade to grade' ... [However, they also noted that] Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level."

For students like Endrew F., who has autism and significant behavioral issues which interfere with his ability to benefit from his education, the standards applied to Amy Rowley back in 1982 were not of practical use. These children have disabilities that make it unlikely or impossible for them to function in a regular classroom and the standards used for more typical learners with IEPs could not readily be applied to them. What some schools -- and the courts reviewing their conduct throughout the country -- did was to take advantage of the differences between a student like Amy Rowley and students with more extensive disabilities. Since advancing from grade to grade, passing tests along the way, was not a practical goal for these students, schools and courts believed that schools were required to provide an education that merely offered "some" or "more than de minimus" or a "just above trivial" educational benefit. 

In yesterday's decision, written by Chief Justice Roberts, the Court soundly rejected that approach, and noted that "If ...it is not a reasonable prospect for a child, his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Furthermore, ... "the progress contemplated by the IEP must be appropriate in light of the child’s circumstances... A focus on the particular child is at the core of the IDEA. The instruction offered must be 'specially designed' to meet a child’s 'unique needs' through an '[i]ndividualized education program.' "

As the Supreme Court noted in the conclusion to its decision, "When all is said and done, a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all."

Teaching Health Care Providers About Psychopharmacology and Mental Health

I was fortunate to spend the past weekend continuing my work as Faculty-in-Training at the REACH Institute, a non-profit organization dedicated to transforming children’s health services by empowering their care providers – parents, doctors, teachers, counselors, and therapists – to know and use the most effective methods for identifying and assisting children with mental health conditions.

My involvement with this organization began in 2011 when I had the opportunity to participate in an intensive Mini-Fellowship, Patient-Centered Mental Health in Pediatric Primary Care.  The Mini-Fellowship was designed to address the growing shortage of pediatric psychiatrists by providing pediatricians, family physicians, nurse practitioners, physician’s assistants, psychiatrists and neurologists with up-to-date training in the use of psychiatric medications  for children and adolescents.  

Since 2011, The Yellin Center’s involvement in children’s mental health and psychopharmacology has grown steadily.  Therefore, I was thrilled when I was invited to apply and was subsequently accepted in the REACH Institute’s Faculty Training Program.  Having completed the first two phases of training, I am hopeful that I will complete the process of becoming a full-fledged member of the REACH Institute’s National Faculty within the next few months.  My work with them already has had a significant impact on my practice and I look forward to ongoing collaborations with experts to ensure that my knowledge and skills continue to grow and remain current.  I also am excited about the prospect of participating in the critical work of addressing the growing shortage of pediatric psychiatrists and increasing access to high quality mental health services for our nation’s children and families.

Literacy Support in NYC

We recently learned about an exciting new initiative from the New York City Department of Education – their Equity and Excellence Initiative. One pillar of this platform is called Universal Literacy. The DOE has called for universal literacy for all public school students by the end of second grade; they believe that with the right supports, by 2026 all students will be reading on grade level in second grade. To jump start this process, 103 new hires joined the DOE team as dedicated reading coaches in the spring of 2016, and they all received intensive training over the summer. Their role is to work with the younger elementary grades’ teachers and administrators to provide dedicated literacy support. Over the next few years, all elementary schools will have access to a dedicated reading coach with specialized training. If your child is having difficulty with reading or just needs some extra support, it may be a good idea to find out what your school is already doing to improve literacy in its K-2 classrooms. A dedicated coach may already be on staff.

One of our favorite organizations, Advocates for Children of New York (AFC), recently published a new fact sheet on literacy. AFC is a local organization that protects the rights of our city’s children most at risk of school failure or discrimination. Their website has an extensive list of guides for parents about navigating your way through the school system. Their new literacy fact sheet is called "Parent-Teacher Conferences: Questions to Ask your Child’s Teacher about How Well He or She is Learning to Read and Write."  It provides a very detailed list of questions to ask teachers during conferences, including more targeted questions for when there are concerns about the progress your child is making.

Another noteworthy literacy document on the AFC website is called "Questions & Answers about Literacy: A Fact Sheet for Families of Students who Need More Helping Learning to Read and Write." This fact sheet provide a brief overview of the Response to Intervention framework, which is one way that schools figure out which students need extra support and what level of support they require. It also has information on how to find the right person in your district to talk to about getting help, and it outlines the rights of families surrounding the special education evaluation process. The fact sheet includes some descriptions of other services to consider, such as classroom accommodations and structured multi-sensory reading instruction, a Yellin Center favorite.

The AFC website is chock full of resources, including a guide to early intervention services in NYC and their short podcast about the NYC high school application process. They are a terrific independent, nonprofit resource, always deserving of support. 

Predicting Drop Out Danger

The statistics on college completion rates are grim. Fewer than two-thirds of college students graduate in six years, and less than half within four years of enrolling. Failure to graduate doesn't erase the debts these students often incur while working towards a degree they don't receive. It's a significant problem for students, their families, and colleges.

One of many approaches to helping reduce the number of students who fail to complete their degree was discussed recently in The New York Times Education Life section. Some colleges are using a technique known as predictive analytics to look at how student performance in specific courses can predict whether students will be successful in obtaining their degree -- or whether they will fail or drop out before graduation. The most predictive courses are those that are designed to give students the foundation for success in later courses.

So, for example, the Times article notes that nursing students at one school who got an A in an introductory biology course had a 71 percent chance of graduating; those who got a B in the same course had only a 53 percent chance. It isn't just differences between grades of A and B that matter. Schools that use this approach to monitoring student performance have found that grades of C or D in specific courses can be early signs of real academic difficulties, even if the student's other grades are higher.

This same proactive use of data can help schools monitor everything from whether students have signed up for the correct course sequence for their intended major, to whether they are logging into the school library regularly. Certainly, privacy issues can come up as the use of student data expands. The use of predictive analytics has not been in place long enough, or broadly enough, to provide statistics on whether its use has a long term impact on student retention and graduation rates. And schools note that raw data without strong advising to support struggling students is not sufficient. Still, this is an interesting tool that may prove useful in helping more students to complete their college education.

Online Learning Interventions

In an earlier blog, we discussed research  that noted the positive impact of "social-belonging" interventions on student engagement in college. When graduating high school seniors received information that most students worry about a sense of belonging, and that such worries subside after taking active steps to connect with others, they were more likely to use their college academic support services, join extracurricular groups, and choose to live on campus. One of the researchers involved in that study, Stanford University professor Geoffrey Cohen, was more recently involved in a related study that caught our attention.

The authors noted that worldwide, many people have enrolled in massive open online courses, i.e., MOOCs; however, far fewer have completed them. People in countries with relatively low United Nations’ Human Development Indices (based on factors such as life expectancy, education, and standard of living) are less likely to complete these free courses than students in more developed countries. The researchers explored whether psychological interventions may help to narrow this global achievement gap. The results were promising. MOOC students who participated in the following interventions improved in their academic performance, closing the persistence gap between students from less and more developed countries:

• Value relevance activity: Students wrote about how their course participation serves their most important values.
• Social belonging activity: Students read and summarized previous students’ testimony about how they were initially worried about belonging in the course but later became more comfortable.

The findings speak to the relevance of student mindset to educational outcomes. When students are struggling, teachers may be inclined to wonder how they can teach differently. While this may be of value, consideration of students’ internal experiences — and how they might be improved — is another important piece of the puzzle. Ideally, students will not only be presented with rich opportunities to learn but will have optimal mindsets for seizing those opportunities.

Diversity an Asset in Teams

A recent issue of Harvard Business Review included the article, “Why Diverse Teams Are Smarter.” The authors reviewed research findings suggesting that groups composed of diverse races, nationalities, and genders fare better than more homogeneous groups. Notably, diverse groups seem to process information better, more carefully tending to facts. They also outperform in terms of production, yielding higher returns and innovating more.

While most of the studies discussed in the article considered diversity in terms of racial, national, or gender identities, one interesting study considered general in-group and out-group diversity. Groups of same-sorority members and of same-fraternity members, along with similar groups that also included outsiders, were asked to solve a problem. While the outsiders were less confident about their answers, they were more likely to be correct. Diversity, beyond the particular skill sets and mindsets that each diverse member brings, may help to guard against "groupthink", i.e., the over reliance on group coherence at the expense of critical analysis.

The value of teams composed of people who are different from one another is certainly worth noting in the field of education. Educators themselves may benefit from collaborating with professionals who are different in their backgrounds and ways of thinking. Organizers of professional development activities should consider the value of teams that are not only interdisciplinary but diverse in other ways. Students working together in groups may have the richest learning experiences, and most successful outcomes, when those teams are heterogeneous. ​

Restorative Justice

New York City's students are no strangers to traditional discipline policies. In the 2015-2016 school year, there were 23,000 suspensions. This reflects a sharp decline from the previous year, which saw 29,000 suspensions, thanks in part to a city-wide effort to reduce the use of harsh discipline with the City's 1.1 million public school students. Rates of exclusionary discipline (discipline that removes a student from the classroom) have been high enough in recent years to prompt educators to seek alternative discipline strategies. 

One strategy that’s been sweeping the nation is restorative justice, a practice that originated as a community-based justice reform for criminal offenses, but has since trickled down into the educational system. Restorative justice is built upon the fundamental assumption that a school building is a community, and all members of that community should be expected to participate. It’s already been implemented with integrity in the Oakland, California public schools, and is potentially a great resource about which all teachers and families should be aware.

Restorative justice is an alternative to traditional discipline strategies because it replaces things like suspensions and being barred from team sports with an ongoing collaborative problem solving process that requires students to generate their own way of righting their wrongs. The transition to restorative justice starts by building a community. This difficult process depends on the availability of training for faculty as well as teacher and student buy-in. Changing the culture of a school takes time, but one of the most interesting and exciting parts of the process is the talking circle. This activity is an integral piece of restorative justice, but it shows promise as a tool for any educator to use to help bring a class of students closer together, and it also conjures up the types of activities used in family therapy sessions.

During a talking circle, students are able to speak without interruption, often through the use of a squish ball or other object that designates the present speaker. The time spent in circles is meant to help students get to know one another and understand why they do what they do. They are typically implemented as a form of mediation between students in conflict – to build empathy and allow students to find out the emotional matters underlying their peers’ behavior – but circles can be formed at any time, not just after a conflict has occurred. Stepping back from academics and opening the floor to student voices sets the community up for ongoing success. It’s a lot harder to enter a conflict with someone you’ve had the opportunity to get to know on a deep level. Talking circles, both as a prevention of and in response to behavioral issues or conflicts, help build reciprocal relationships wherein students feel protected and will, in return, work to protect the community they’re a part of.

Restorative justice was a direct response to issues like zero tolerance policies, school drop-out, and racial disparities in the use of harsh discipline. Research has shown promising results in high-need areas, but the principles of restorative justice and building a classroom community are important in all types of settings. By teaching kids early on how to interact with others they may not always want to get along with, maybe they’ll carry that empathy with them into adulthood and use it to feel connected to our beautifully diverse city, which is home to 8.5 million people from at least 190 countries.

For more information about restorative justice and discipline reform in NYC public schools, check out the following resources and articles:

• An article in The New York Times from September 2016
• A review of programs throughout the country, from the George Lucas Educational Foundation
• The announcement from the NYC Mayor's Office of initiatives to make schools fairer and safer
• Resources from the Centre for Justice and Reconciliation

• A book, For White Folks Who Teach in the Hood by Christopher Emdin, that lays out a step-by-step framework for building a classroom community.  His writing is directed at educators in high-need areas, but his philosophy and methods are far-reaching.