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."

Report Finds School Segregation Increasing

A report issued last week by the U.S. Government Accountability Office (GAO) found a significant increase in the number of public K-12 schools in the U.S. with students who are poor and mostly Black or Hispanic.

 The report, requested by the House Committee on Education and the Workforce, was released on the 62nd anniversary of the landmark U.S. Supreme Court decision in Brown v. Board of Education which determined that "separate but equal" education based upon race was a violation of the Constitution and established the principle that access to public education is a right that must be made available to all on equal terms.

The GAO looked at data from the U.S. Department of Education for the school years from 2000-01 to 2013-14 (the most recent data available), and found that the percentage of  K-12 public schools that had large numbers of poor and Black or Hispanic students grew from 9 percent (7,009 schools) to 16 percent (15,089 schools) during that time. In addition, these schools, where 75 to 100 percent of the students were Black or Hispanic and were also eligible for free or reduced lunch (a commonly used indicator of poverty), offered fewer math, science, and college prep courses compared to other schools and had higher rates of students being retained in ninth grade, suspended, or expelled. 

When viewed in terms of individual students impacted, the number of students attending such schools more than doubled during the period the GAO examined, increasing by about 4.3 million students, from about 4.1 million to 8.4 million students.

One goal of the GAO study was to determine whether the data compiled by the Department of Education and by the Justice Department, which reviews discrimination claims and monitors and enforces close to 200 open federal desegregation court cases to which it is a party, is collected and used in ways that effectively enable these agencies to identify and address issues related to racial discrimination in schools. The answer to that question is best found in the title of the GAO report: Better Use of Information Could Help Agencies Identify Disparities and Address Racial Discrimination.

Bad News About a Bad Law

Back in May 2011, we wrote about a then pending Florida law that would prohibit physicians from asking parents about whether there are guns in their homes. The question, when asked by a pediatrician or family physician, can open the topic of gun safety and allow the doctor to counsel the parent about what is needed to make sure that their own and other people's children are kept safe. 

Gun advocates claimed that this would constitute harassment and somehow lead to records being kept by physicians as to which of their patient families had guns present in their homes. Opponents of the law pointed to limits on a physician's judgment, freedom of speech issues, and the appalling number of children injured or killed by playing with guns found in their home or another house at which they play.

The law was signed by Florida Governor Rick Scott shortly after our original post about it. In September of 2012 we were able to report that Federal District Court Judge Marcia G. Cooke had ruled that the Florida law was unconstitutional and issued a permanent injunction which blocked its enforcement.

Late last week, we learned that the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned Judge Cooke's injunction, which means the law can take full effect. You can read the complete 160 plus page decision and the dissent by Judge Charles R.Wilson here.

We hope that some of the groups that brought the initial lawsuit against this law will continue to seek to overturn it. The next stop for this would be the United States Supreme Court. We will continue to follow and report on new developments. 

News You Can Use

Our pile of newspapers and magazines -- paper and digital -- is growing all the time, and we sometimes get the feeling that education news is happening too quickly for us to keep up with it. Here are some items that we think are important to share.

• Hofstra University, the largest college on Long Island, with approximately 6,800 undergraduate and 3,000 graduate students, has announced that they are implementing a "test optional" admissions policy
  
  for students applying for admission for fall 2015. This policy will apply to all but international and home-schooled students. Hofstra is joining more than 800 other colleges and universities that no longer require SAT or ACT tests for admission. Recent research has demonstrated that there is no correlation between high standardized test scores and college success; researchers have found that the greatest predictor of college success is a high GPA in high school. You can find lists of other colleges that do not require standardized testing on the website of the National Center for Fair & Open Testing, Fairtest.
• A new group -- the Coalition for Multiple Pathways to a Diploma, led by our colleagues at Advocates for Children of New York -- is looking at New York's dismal high school graduation rates and at ways to improve these numbers. Check out a report by the coalition and a PowerPoint presentation which presents some stark numbers: New York is well in the bottom half of states in graduation rates, with an overall graduation rate throughout the state of 74%, a rate which falls to less than 45% for students with disabilities. 
• ED, the Magazine of the Harvard Graduate School of Education, has an excellent and lengthy examination of two U.S. Supreme Court cases impacting race and education -- Brown v. Board of Education, the 1954 decision which outlawed segregation in public schools, and Milliken v. Bradley, a 1974 decision which barred most busing across school district lines to achieve racial integration of public schools and left de facto segregation and sharp differences between inner cities and their more affluent suburbs in place.