On December 28, 2016, the US Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague letter regarding students with disabilities and public charter schools. The letter addresses application of Section 504 of the Rehabilitation Act of 1973 (hereafter “Section 504”) and IDEA. This blog will focus on OCR’s guidance on Section 504.
Application of Section 504 of the Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act prohibits discrimination on the basis of a child’s disability by schools which receive Federal financial assistance. This includes public charter schools that operate as local educational agencies.
Students with disabilities are also protected under Title II of the Americans with Disabilities Act (hereafter “Title II”). Title II regulations prohibit discrimination by state and local governments regardless of their funding. Violations of Section 504 also typically qualify as violations of Title II.
Students who have IEPs under IDEA are also protected by Section 504. Students with 504 Plans are not necessarily protected under IDEA.
The protections of Section 504 apply equally to traditional brick-and-mortar as well as public charter schools.
Recruitment and Application Proess for Charter Schools
Public charter schools are prohibited from utilizing discriminatory practices in the recruitment of their students. They must also ensure a nondiscriminatory application procedure is established. Schools may not categorically state the following exclusions in their recruitment materials, nor may they use these categories to deny admission:
- Based directly on a student’s disability;
- Based indirectly on student’s disability; and
- Any statement that would support a violation of Section 504.
Accommodations in the application process shall be made to ensure equal access to students with disabilities. These accommodations might include large print materials, translation, etc.
Public charter schools are may inquire whether a student has a disability during the application process so long as the school has a legitimate reason for making the request and they are not collecting the information as the sole criteria to determine eligibility. Permissible inquiries include: remedial action by the public charter school if OCR made a past determination of discrimination, public charter school is taking action to remediate conditions which resulted in limited participation by students with disabilities, or the public charter school is set up to serve the educational needs of students with a particular disability to determine if the student has the disability.
A student who has a physical or mental impairment that substantially limits a major life activity is entitled to protections under Section 504. These protections include, without limitation:
- Procedural Safeguards
- 504 team evaluation
- 504 Plan
- Entitlement to FAPE
- Right to participate in extracurricular and nonacademic activities
- Right to transportation
- Right to protections during disciplinary actions
Students in public charter schools are entitled to the same protections as traditional brick-and-morter schools.
This process for establishing a 504 Plan is further explained in my previous blog on the subject https://specialedlegaljourney.com/2016/09/07/section-504-of-the-rehabilitation-act-of-1973/.
Sample modifications and accomodations have also been addressed in a previous blog: https://specialedlegaljourney.com/2016/10/14/504-plans-sample-modifications-and-accommodations/
If you have any questions regarding this topic, please contact Kristin Springer at (925) 551-1041.
(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)