June 2024: 

The MLO Minute: “The Breadth of “Discrimination” Under Section 504 and the ADA” 

By Dennis McAndrews, Esq., and Jacqueline C. Lembeck, Esq. — 

As discussed in previous MLO Minutes, Section 504 of the Rehabilitation Act and the ADA require the provision of a free appropriate public education (FAPE) for children with disabilities, including those who do not fit into one of the categories of protected children under the primary special education law, the Individuals with Disabilities Education Act (IDEA). These two important statutes cover more children than IDEA and their protections are often especially important in ensuring appropriate services to children with such diagnoses as ADHD, anxiety disorder, depression, diabetes, and others.

A “defense” that we frequently address from school districts and charter schools is that “we are not treating disabled persons differently than anyone else, and therefore there is no discrimination.” While the courts have frequently rejected this argument, it can have initial facial attractiveness to some hearing officers and judges. However, the recent case of S.R. v. DHS rejects this claim and clearly defines “discrimination” under Section 504 and the ADA.  S.R. v. DHS held that segregation of persons with disabilities (failure to provide the least restrictive environment—LRE) and the failure to provide reasonable accommodations (FAPE) to meet the needs of a person with disabilities is, ipso facto, a form of discrimination. Therefore, a simplistic “comparison” of programming for a child with disabilities with that of nondisabled individuals is of no relevance under these statutes. As stated by the court in S.R. v. DHS:

The Supreme Court has already [defined discrimination] in Olmstead v. L. C. noting that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” 527 U.S. at 600 (quoting §§ 12101(a)(2) and (a)(5)). The integration regulation therefore finds its genesis in the statutory text itself. Similarly, the Olmstead Court noted that the statutory text incorporates the reasonable modifications regulation by defining a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services . . .” meets certain eligibility requirements. 42 U.S.C. § 12131(2). Further, Congress included in its statement of findings applicable to the ADA as a whole that “individuals with disabilities continually encounter various forms of discrimination, including … failure to make modifications to existing facilities and practices.” 42 U.S.C. § 12101(a)(5). The Supreme Court has referred to this as the ADA’s “affirmative obligation to accommodate persons with disabilities.” Tennessee v. Lane, 541 U.S. 509, 533 (2004).

Accordingly, a student can still be the victim of disability-based discrimination even if the student is treated the same as non-disabled peers such as where the student is segregated or lacks necessary modifications or accommodations.

A significant part of our practice involves children who are protected only by Section 504 and the ADA. Our initial special education consultations are free, and the majority of our cases are handled on a contingency basis without hourly charges to our clients. We look forward to working with your family!