Section
504: It Is Not "Unfunded" Special Education
Mention
"504" to public education personnel and
one will hear a variety of responses, few
of which are positive in nature or understanding:
|
"We
don't use that."
"Our
teachers don't like that."
"What
exactly is that?"
"We
have a few kids under 504."
"We
put lots of kids under 504."
|
Not
surprisingly, the resistance to and ignorance of Section 504
and how this federal act can be used to offer assistance to students,
is now creating litigious nightmares for school districts and teachers
across the nation.
| There
are three main reasons that Section 504 is being turned
to by parents to obtain necessary help for children who may
be floundering in their classes. |
1) The reform movement from "mainstreaming" to "inclusion"
that began in the 1980s refocused attention on how students with disabilities
were faring in the regular classroom.
Under
special education's Individuals with Disabilities Education Act
(IDEA) of 1975, students were to be placed in the least restrictive
environment, which evolved into a "mainstreaming" philosophy.
This concept proposed that children with disabilities be educated
in segregated placements until they could "swim" in the mainstream
of public education. Few children, once placed, exited completely
from special education programs into the mainstream. If they did,
they usually failed because of inadequate preparation for regular
education demands. (When teachers "slow down" to remediate students'
cognitive and/or academic deficiencies, the students can get even
farther behind their class-mates in the regular classroom.)
To say
handicapped students should be accepted and educated in classrooms
with their peers was one thing. To see that happen was another. The
major stumbling blocks were twofold: students segregated under special
education services generated extra federal dollars for school districts,
and general educators were neither trained nor expect-ed to modify
their teaching practices to accommodate these students.
Under
the concept of "inclusion," the needs and best interests of
the child command attention. Services separate from regular education
are to be justified in writing; educators are held accountable for assurances
that a measurable "educational benefit" will be experienced
in the segregated, restrictive environments.
2) There
was an increase in and awareness of persons with mental or physical
disabilities who didn't qualify for IDEA services. For
example, more and more children were being diagnosed with disorders
related to attention deficit and hyperactivity (ADHD), conduct
problems, depression, anxiety, etc.
Advocacy
groups, such as CHADD (Children and Adults with Attention Deficit
Disorder), began turning to the Rehabilitation Act of 1973 (an anti-discrimination
civil rights statute for handicapped persons) and its Section 504
for relief.
Schools
were being pressed to recognize that many of these students were not
benefiting from regular classroom instruction, but they could not qualify
for special education services. (ADHD was eased into special education
under "Other Health Impaired" (OHI) in 1991 and explicitly
addressed in IDEA's 1997 amendments, which were enacted in 1999.)
Section 504 required that schools write Individual Accommodation
Plans (IAPs) that became federal mandates for implementation within
school settings. Litigation started being utilized by parents to insist
on 504 consideration and adoption by public schools.
3) The
whole concept and practice of a designated "special education" program
had become a major disappointment for many parents, teachers,
and students.
The
system was a cumbersome one with its referrals, evaluations, labels
(especially the "labels"), and placements in separate classrooms.
Lowered academic expectations accompanied the "stigma" of one being
in need of remediation. Lowered self-perceptions among the labeled
students usually resulted in a rise of behavioral and disciplinary
issues.
As the numbers of such students grew exponentially
through the past two decades, it had become clear that huge numbers
of children were being placed in special education but few were succeeding
academically in spite of this "specialized education."
A corollary
to the situation was the increasing shortage of well-trained special
education teachers and diagnosticians, and the resulting use of inappropriate
education practices in the classrooms. Many parents and educators came
to believe that mild-to- moderate students with learning disabilities
would have been better off left in the mainstream to "sink or swim"
than to be separated, stigmatized, and then educated with inadequately
trained personnel. They began to seek a method that would allow their
children to remain in the regular classroom, but which would also allow
them to receive necessary accommodations to help "level" the
academic playing field. That
"level playing field," now recognized as a civil right, would
be found with Section 504.
Potential
"Accommodations"
The
accommodations that have been recognized as appropriate for 504
students through hearings and judgments will require a new kind of
accepting, thinking, and planning among educators. For example, based
on the 1991 USDOE Joint Memorandum [34 C.F.R. 104.33(b)(1)] which
has been quoted as the law in several judicial decisions, 22 services
that must be available in regular classrooms for Section 504
eligible students include the following:
1)
providing a structured learning environment
2)
repeating and simplifying instructions about in-class
assignments
3)
repeating and simplifying instructions about homework
assignments
4)
supplementing verbal instructions with visual instructions
5)
using behavioral management techniques
6)
adjusting class schedules
7)
changing test delivery
8)
using tape recorders
9)
using computer-assisted instruction
10)
using other audio-visual equipment
11)
selecting alternate textbooks
12)
selecting supportive workbooks
13)
tailoring homework assignments
14)
consulting with special education for teaching strategies
15)
reducing class size
16)
using one-on-one tutorials
17)
using classroom aides
18)
using classroom note-takers
19)
involving services coordinator to oversee implementation
of program/services
20)
modifying non-academic time such as lunchroom
21)
modifying non-academic time such as recess
22)
modifying non-academic time such as physical education
Notice
these are physical accommodations, not modified cognitive materials
(lowered levels of learning). Modifications do require more preparatory
work for teachers with a know-ledge about content and developmental
levels of subject matter. Section 504 thus requires less
cognitive work for regular education teachers than do special education
"inclusion" practices.
However,
teachers who have to learn how to create and maintain a "structured
learning environment," or how to work with behavior modification,
or how to present material in a simplified format are teachers who
will need some specific training, mentoring, and monitoring. Teachers
who also think, usually at the secondary level, that they shouldn't
have to accommodate for a student's behavioral and academic needs
will also need special training and mentoring.
Major
Need of Teacher Training
So
what is the one big issue that seems to be the stumbling block for
recognizing Section 504 as one means of reducing the bloated numbers
of special education students in the nation's school districts?
Good teacher training and mentoring for working with diverse and deficient
learners in the regular classroom are the problem. Until these are
addressed successfully, children will continue to be "sorted" into
special education, with its rampant, but
lacking, need for more and more "specialized" teachers.
Section
504 could be a major answer to help end the tripartite U.S. school
system that now houses "regular education," "special education," and
"alternative education." This will happen when it is understood that
most of the 504 "accommodations" are simply good teaching tools that
any regular educator should use, as needed, in a classroom, without
a federal mandate. Section 504 is a regular education issue, not "unfunded special education."
Rulings
today about 504 cases are often mirroring those found in special
education. Schools are being required to provide Individual Accommodation
Plans (IAP) with a referral and accountability system to assure that
educators meet both the legal expectations and the spirit of the law.
While special education cases revolve around procedural
issues—Did the school follow the mandated federal rules regarding
special education placement and implementation of the Individual Education
Plan (IEP)?—the concern of the court responses about 504
has been, "Did the school exercise caution and make a good faith
effort to meet the needs of the student?"
Attorneys
at conferences admonish educators today that failure to implement
a 504 plan can affect the student's educational opportunities
and possible achievement levels, the teacher's appraisal or job, a
case for litigation, and the loss of big bucks to both teacher and
the district.
The
Broad "Brush" of Section 504
The
expanding areas for which a student can be considered for 504
protection and accommodations do, indeed, create a two-edged sword
for school districts. For one thing, legal interpretations have allowed
many issues to be considered potential "handicapping" conditions.
For another, funding is still not provided to help with (physical)
accommodations, which may also be required for individuals by the
1990 American Disabilities Act (ADA). The ADA affects the removal
of physical "barriers," including buildings, transportation and communications,
in both private and public sectors for handicapped individuals.
The
following situations are some examples of possible 504 risk
factors reflecting the Rehabilitation Act's "major life activities"
(caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, or working): health
impairments from serious injury or illness; obesity; potential dropout;
any suspected disability; substance abuse; ineligibility for special
education; exiting from special education; social maladjustment (not
emotional disturbance); diabetics; asthmatics; heart disease; HIV/AIDS;
dyslexic students who are not learning disabled. In addition,
Section 504 may be recommended if a specific pattern
is shown in the following: absenteeism; academic performance
changes; tiredness or low energy; depression; not benefiting from
instruction; parent concerns; teacher concerns.
Under
Section 504, students are eligible for protection and accommodations
even if their disabilities do not negatively affect their educational
performance.
That is, if a student is asthmatic and needs time to go to a nurse
each day, he can be placed on a 504 plan. The sane assumption
is that a teacher or school would allow such a student to do this
without putting him under a special federal plan. Too often, however,
a 504 plan is demanded by parents in order to assure attention
and cooperation by a teacher or a school.
| Section
504
specifies that eligible students will be served in the regular
classroom, unlike special education students who may
or may not receive regular education instruction. While
504 is to offer a "level playing field" in
terms of equal opportunities, it does not guarantee equal
achievement with a student's peers. It does not
promise a chance to win. It says, "You get
a chance to play." |
Discipline
Issues Become Special
One
last sticky issue concerns discipline issues regarding Section
504 students. Any student recommended by the 504 referral
committee for accommodations must factor in potential behavioral problems
that could interfere with the student's academic achievement. If his
or her handicapping condition can be linked as causal factors to misbehaviors,
this must be addressed with a behavior intervention plan in the IAP,
and/or recognized when discipline issues arise with the student. Not
to do so sets the district up for litigious troubles. The campus
504 committee retains final authority about placement, suspension
or expulsion of an eligible student.
|
In summary, IDEA's "appropriate" education
means a program is designed to provide "educational benefit"
for a student according to his own cognitive and/or physical
needs with "specially designed instruction."
The educational levels of non-disabled peers are irrelevant
when planning the special education child's IEP.
Section 504's "appropriate" education,
conversely, means one that is "comparable" to
that which is provided to non-handicapped peers. It
is to offer equity and opportunity with his or her average
classmates.
|
A
Mini-History of Section 504
Federal
regulations implementing Section 504 are found in Title 34 C.F.R.
Part 104. It is a civil rights statute, passed in 1973
as part of the Rehabilitation Act:
|
"No
otherwise qualified individual with handicaps in the United
States…shall, solely by reason of his or her handicap,
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." (29 U.S.C. 794[a])
|
This
legislation was intended to assist returning Vietnam veterans, who
were having difficulty obtaining and maintaining employment due to
"handicapping" conditions that could be the result of physical and/or
mental impairments. It was thus seen, originally, as a support for
adults who were 1) "unable to perform a major life activity that
the average person in the general population can perform"; or
2) "significantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to…the average person in the general population."
Since no age parameters were defined in the legislation, it could
be used by any citizen involved in any program that received federal
dollars. Such programs would obviously include public schools.
While
no definitions of "unable to perform" or "significantly
restricted" were given in the legislation, "major life activities"
came to be considered functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
In 1975,
the Individuals with Disabilities Education Act (IDEA) was
passed, replacing PL 94-142, or the Education of the Handicapped Act
(EHA). It was here that federal funding was connected to handicapped
learners in the public schools.
IDEA
became the funding statute
that quickly overshadowed any potential use of Section 504, a civil
rights statute, for children in schools. Children who were identified
and qualified for one of IDEA's 13 defined categories would
bring extra federal dollars to a district. If a child were going to
be seen as "handicapped" and could be qualified for "special education,"
even under the complex federal procedural guidelines, it made more
sense for schools to use the IDEA label, not "504,"
which was unfunded. There was literally no incentive to use Section
504 to accommodate students' needs.
While
IDEA clearly spells out with rigid guidelines the Individual
Education Plan for a special education student, the 504 referral
committee simply must have at least two individuals who know the student
and his or her work. The committee is not required to have parent
consent to put a child under a 504 plan (but best practice
is to obtain such consent). Good planning and accurate documentation
are needed in both situations, however. Litigation is proving those
to be important issues today.
Any
school district with 15 or more employees must assign an employee
to serve as the district Section 504 compliance officer and
to develop a grievance procedure for parents, students, and employees.
It is
important to remember that Section 504 is not an aspect of special
education (IDEA). It should not be construed as being under
the same organizational structure of "special education."
At the same time, any student qualifying under special education's
(IDEA) handicapping guidelines (for funding) is automatically protected
under Section 504 (for civil rights expected among the average population).
Section 504 is regulated by the federal Office of Civil Rights (OCR);
IDEA is monitored by the Office of Special Education Programs (OSEP).
Looking
at all students in the school, there are some disabled students
who require no special assistance. There are some disabled
students who have "substantial limitations"(504) and
who need accommodations to level the academic playing field among
their average peers. There are some disabled students (IDEA)
who need accommodations and content modifications to assure personal
"educational benefit" at their own cognitive levels.
IDEA students are then automatically covered (within and under) Section
504 regulations.
Resources
Council
of Educators for Students with Disabilities, Inc. "Fall Southwest
Section 504 Conference," Austin, TX. Sept. 27-28, 1999.
Hayes,
Nakonia. "Section 504 Review and Update." Region 12 Education Service
Center, Waco, TX. February 25, 1999.
Kincaid,
Jeanne. "Emerging Legal Issues in Section 504." Fall Southwest Section
504 Conference, Council of Educators for Students with Disabilities,
Inc. Austin, TX. Sept. 24-25, 1998.
Martin,
Jose L. and Blanchard, Tim. "Making the Manifestation Determination
Under Section 504." Spring Southwest Section 504 Conference, Council
of Educators for Students with Disabilities, Inc. Austin, TX. April
12-13, 1999.
Miller,
Linda and Newbill, Chris. Section 504 in the Classroom, How to Design
and Implement Accommodation Plans. Pro-ed Publishing, Austin, TX.
1998.
Richards,
David M. "Discipline of the Section 504 Child." Fall
Southwest Section 504 Conference, Council of Educators for Students
with Disabilities, Inc., Austin, TX, September 24-25, 1998.
Zirkel,
Perry A. Section 504 and the Schools. LRP Publications, Horsham,
PA. 1993.
About
the Author:
Niki
Hayes is a former elementary school principal who is now retired.
She formerly worked as an education specialist for Region 12 Education
Service Center in Waco, Texas where she served as 504 coordinator for
its 79 school districts and as a teacher trainer for the SPED programs.
She has also been a principal for a P-12 public school on the Spokane
Indian Reservation. Niki has her master's degree in counseling,
a bachelor's degree in journalism and is certified and experienced in
administration, mathematics, special education, counseling and journalism.
She has done some doctoral work in mathematics education at the University
of Texas in Austin. Nakonia (Niki) Hayes can be reached at
n.c.hayes@worldnet.att.net
You
are here: 