CENTER FOR LAW AND EDUCATION

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Question

            How can Section 504 and Title II of the ADA be used to help ensure that students with disabilities have meaningful opportunities to learn what all students are expected to learn under standards-based education reforms?

Answer

            Apart from any IDEA requirements, the §504 and ADA regulations require schools to provide the vast majority of students with disabilities with the instruction and supports necessary to allow them to learn what the general curriculum teaches, including the knowledge and skills called for by any standards the state has adopted for all students. These regulations may also require schools to change practices that hinder effective access to the general curriculum, or other instruction tied to the standards set for all students.

            Comparable Benefits: The §504 regulations require public school systems to provide all children with disabilities a "free appropriate public education" consisting of "regular or special education and related aids and services that...are designed to meet individual educational needs...as adequately as the needs of nonhandicapped persons are met...." The regulations also prohibit schools from affording qualified students with disabilities "an opportunity to participate in or benefit from...[an] aid, benefit or service that is not equal to that afforded others," providing "an aid, benefit, or service that is not as effective as that provided to others," or providing "different or separate aid, benefits, or services unless...necessary to provide...aid, benefits, or services that are as effective as those provided to others." The ADA regulations applicable to state and local governmental services contain the same prohibitions. In order to be "equally effective" under these regulations, aids benefits and services "must afford...equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement in the most integrated setting appropriate to the [student's] needs." The opportunity to learn the general curriculum and to meet content and performance standards, define the inputs and outcomes, respectively, of a quality education - and so the "aid, benefit or service" that is public education. If students capable of participating, with or without appropriate services, are denied educational opportunities designed to allow them to learn in the general curriculum and attain the standards set for all students, they are provided instead an "aid, benefit or service that is not equal to that afforded others," that "is not as effective as that provided to others," and that is unnecessarily "different or separate," in violation of the §504 and ADA regulations.

Criteria and Methods of Administration that Discriminate: The §504 regulations also make it illegal for school systems running programs to "utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap,[or] (ii) that have the...effect of defeating or substantially impairing accomplishment of the objectives of the...program with respect to handicapped persons...." The ADA regulations contain a similar ban. “Criteria” are written policies; “methods of administration” are a school system’s actual practices.

            In public school systems, learning what is included in the standards and the general curriculum is one of the key "objectives of the program or activity." "Criteria or methods of administration" that limit the opportunities for students with disabilities to receive the educational programming necessary for them to do so "have the...effect of defeating or substantially impairing the accomplishment of" this objective, and constitute prohibited discrimination.

            Avoiding such discrimination requires school systems to identify and examine policies and practices that may have the effect of limiting access to the kind of instruction necessary to attain the standards or otherwise achieve in the general curriculum. Depending upon the circumstances, any number of policies and practices might have this effect. Examples include lack of coordination (in terms of both scheduling and content) between pull-out programs like resource rooms and the mainstream academic curriculum; providing a diluted curriculum in programs and classes labeled as serving students with behavioral (or any other) disabilities; inappropriate reliance upon punitive discipline, including disciplinary exclusion; and the failure to provide for the appropriate integration of special education supports and related services, including behavioral supports, into what are conceived of as regular education classes.

ELO

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