Disability Rights Laws for Public Primary and Secondary Education

George Powers

This document explains the general obligations that public elementary and secondary schools have toward students with disabilities.

There are three main laws that affect the rights of students with disabilities: the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). Meeting the requirements of one law does not automatically satisfy the requirements of the other laws. A school system has to meet the requirements of all the laws. (See Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools).

The Individuals with Disabilities Education Act (IDEA)

The Individuals with Disabilities Education Act (IDEA) guarantees a free and appropriate public education to eligible students with disabilities by requiring schools to provide special education and services in the least restrictive environment possible.

Eligibility for services under IDEA:

A student must have one of these 13 disabilities and need special education and services because of the disability:

  • autism;
  • deaf-blindness;
  • deafness;
  • emotional disturbance;
  • hearing impairment;
  • intellectual disability;
  • multiple disabilities;
  • orthopedic impairment;
  • other health impairment;
  • specific learning disability;
  • speech or language impairment;
  • traumatic brain injury; or
  • visual impairment (including blindness).

How is Eligibility Determined?

The parents or the school system may ask for a full and individual evaluation to determine eligibility.

Individualized Education Program (IEP):

  • An IEP is a written individualized plan to identify and outline the services for the child.
  • A team that includes the child’s parents and school staff develops an IEP that meets the child’s educational needs.
  • An initial IEP meeting must be held within 30 calendar days after a child is determined to be eligible for IDEA services.

Least Restrictive Environment:

Children with disabilities should be educated with children without disabilities whenever possible, using supplemental aids and services if necessary. They should not be removed from the classroom or placed in special classes unless it is the only way to meet their individual educational needs. The IEP may include a mixture of “mainstreaming” and special education services when that is the best way to meet a student’s needs.

Section 504 of the Rehabilitation Act:

Section 504 protects the rights of individuals with disabilities who participate in programs and activities that receive federal financial assistance. Schools and school districts that are covered by Section 504 must provide a free and appropriate public education to each student with a disability and create a 504 plan that describes the accommodations and services needed for the student.

Students with disabilities are afforded equal access through the provision of accommodations and other services, which are outlined in a 504 plan.

Eligibility for accommodations under a 504 plan:

  • A student must have a physical or mental impairment that substantially limits a major life activity; and
  • The disability substantially limits his/her ability to learn and participate in the classroom.
  • There is no list of specific disabilities as with IDEA.

How is eligibility determined?

The parents or the school system can request an evaluation to determine if a student is eligible.

504 Plan:

  • The school must create a 504 plan for students who have disabilities and do not qualify for special education services under IDEA.
  • A 504 plan does not have the same formal requirements as an IEP.
  • A 504 plan is a written document that outlines the accommodations and services needed by a student with a disability so he or she can have equal access to the education program.
  • Under a 504 plan, accommodations generally allow the student to participate in the general educational setting by, for example, providing extended testing time or removing physical barriers. In contrast, an IEP usually provides services for outside of the general classroom setting.

Educational Setting:

Whenever possible, students with disabilities should be educated in the general education environment with the assistance of appropriate aids and services.

The Americans with Disabilities Act (ADA):

Title II of the ADA guarantees equal access for individuals with disabilities to programs and services of local and state governments, including schools. Title II and Section 504 provide similar protections for students with disabilities.

Example 1 – Service Animals

Aeris, a 4th grade student with a learning disability and a physical disability, uses a service animal trained to remind her to take her medicine. Aeris has an IEP, and her service animal is not part of her IEP. However, Aeris’ IEP includes a detailed plan to ensure that the staff is prepared to remind her to take her medications on time throughout the school day. Aeris brings her service animal to school. The school administrators deny her service animal access because the disability-related task performed by the service dog is fulfilled by the school staff.

Question: Did the school administrators violate any laws?

Answer: Yes, the school administrators violated Title II of the ADA by denying Aeris’ service animal access. Under Title II of the ADA, a public entity must allow an individual with a disability to be accompanied by a service animal. This requirement under the ADA is separate from the right to receive a free and appropriate public education under IDEA.

Example 2 – Effective Communication

Barret is a 7th grader who has hearing loss and uses cochlear implants in his ears. Even with his cochlear implants, Barret cannot hear everything and uses lip reading and educated guesses through observations to fill in the gaps of speech he does not hear. Barret’s IEP provided for an FM amplification system, copies of written notes, obstruction-free seating and other communication-related accommodations. In addition, Barret requested Communication Access Realtime Translation (CART), a real time transcription service that displays words on a screen as they are spoken. Because Barret did very well in school, the IEP team denied his request.

Question: Does Barret have a right to CART services?

Answer: Yes, Title II of the ADA states that communications with students with disabilities should be “as effective as communications with others.” Furthermore, “In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.” Even though the school is meeting its obligation to provide a free and appropriate public education under the IDEA, the obligation to communicate effectively under the ADA is not being met.

Bullying

  • Under Title II of the ADA, schools must prevent bullying and harassment on the basis of a student’s disability.
  • Students who receive IDEA or Section 504 services have a right to be free of any kind of bullying, whether it is related to a disability or not.
  • A school can be held legally responsible if it fails to investigate and stop harassment that results in a significant decrease in a student’s academic performance. The school should convene a 504 or IEP meeting to determine what effect the bullying is having on the student’s education and if any additional services need to be implemented.

Nonacademic Services

Schools must take reasonable measures to allow students with disabilities an equal opportunity to participate in nonacademic services, including meals, recess periods, transportation, and extracurricular clubs and athletics. However, schools are not required to make fundamental alterations to the services or programs, for example, adding an extra base to a baseball field or widening a basketball rim.

Enforcement

School districts must appoint a Section 504 coordinator and adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any violations of Section 504.

In case of discrimination

When a parent believes that a school system is discriminating against a child because of his or her disability, the parent should contact one of these agencies:

  • The child’s school district
  • The state education agency
  • The Department of Education’s Office for Civil Rights.

Resources

U.S. Department of Education, Office for Civil Rights

U.S. Department of Education, IDEA

Department of Justice

The Southwest ADA Center is a program of ILRU (Independent Living Research Utilization), at TIRR Memorial Hermann in Houston, Texas. The Center is funded by a grant (90DP0092) from the National Institute on Disability, Independent Living, and Rehabilitation Research. NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this article do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.