Academic journal article Journal of Law and Education

Counterpoint Introduction - Does Section 504 Require a Section 504 Plan for Each Eligible Non-IDEA Student?

Academic journal article Journal of Law and Education

Counterpoint Introduction - Does Section 504 Require a Section 504 Plan for Each Eligible Non-IDEA Student?

Article excerpt

Although overlapping with and extending well beyond the Individuals with Disabilities Education Act,1 the two key questions under Section 504 for students in K- 12 public schools who do not meet the IDEA definition of disability are: 1) who is eligible? and, for those who are eligible, 2) what is their entitlement?2 The Americans with Disability Act Amendments Act (ADAAA),3 which went into effect on January 1 , 2009 and which expressly applies as well to Section 504, changed the answer to the first question and, without directly addressing it, reinforced the operational part of the second question, specifically, is every newly eligible student entitled to what is commonly called a "504 plan?"4


Unlike the IDEA definition of disability,5 the broader Section 504 definition of disability has three alternate prongs, each based on three criteria.6 The first prong is for an individual who has 1) a mental or physical impairment that 2) substantially limits 3) a major life activity. The second and third prongs are respectively for individuals who, although not currently meeting these three criteria, have either "a record of or are "regarded as" meeting them.7

The Office for Civil Rights (OCR), which is the part of the U.S. Department of Education that administers and enforces Section 504 in the K- 12 school context, has consistently adhered to a persuasive interpretation of the second and third prongs in relation to students. Specifically, OCR has clarified the "record of and "regarded as" prongs only provide protection against exclusion, whereas the entitlement for a free and appropriate public education (FAPE) is solely for a student who is under the first prong.8

During the two decades preceding the passage of the ADAAA, the courts restrictively interpreted the second and third criteria- substantial limitation and major life activity- of the first prong.9 More specifically, led by the Supreme Court's trilogy of Sutton v. United Air Lines, Inc.,'" Albertson's, Inc. v. Kirkingburg,u and Murphy v. United Parcel Service, Inc.,'1 the courts have interpreted "substantial limitation" restrictively against plaintiffs, such as applying this standard with mitigating measures. Similarly, exemplified by the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams," the courts restrictively interpreted the statutory list of illustrative major life activities globally and centrally. Although the plaintiffs in the vast majority of cases were employees, the definition applies generi cally and, thus, the lower courts applied these precedents to students.14

However, the ADAAA reversed this restrictive judicial trend, expressly rejecting the Sutton trilogy and Toyota Motors.''' Although the ADAAA's provisions are rather broad in terms of eligibility determinations, two pairs of examples are particularly significant. First, for "substantial limitation," the ADAAA provided that the determination be made 1) without- not with- mitigating measures,"' and 2) for impairments that are episodic or in remission, at the time it is active.17 For "major life activities," the ADAAA expanded the illustrative list, including 1) less global functions for students than learning, such as reading and concentration, and 2) various health-related conditions, such as bowel and other major bodily functions.18 The inevitable result is an expansion of eligibility. Under the previous interpretive standards which the courts developed, a national survey found that the estimated proportion of K- 12 students covered by Section 504 but not by the IDEA was approximately 1%.'" The actual percentage in practice was, on average, slightly higher. The survey provided reason to suspect net over-identification; for example, at least one third of the survey respondents, who were Section 504 building coordinators, reported that the determination of "substantial limitation" was without mitigating measures.20

The specific extent of the revised and ultimately expanded proportion of students eligible under the new, ADAAA standards is unknown at this time. …

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