Section 504 of the Rehabilitation Act
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Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq., is American legislation that guarantees certain rights to people with disabilities. It was the first U.S. federal civil rights protection for people with disabilities. Because it was successfully implemented over the next several years, it helped to pave the way for the Virginians with Disabilities Act in 1985 and the 1990 Americans with Disabilities Act.
Section 504 states (in part):
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Codified as 29 U.S.C. 794.
As amended in 1974,Section 111, Pub L. 93-516, 88 Stat. 1619 (Dec. 7, 1974), Individuals with Disabilities are:
any person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment
"Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning."
However, "For purposes of employment", Qualified Individuals with Disabilities must also meet "normal and essential eligibility requirements", such that:
"For purposes of employment, Qualified Individuals with Disabilities are persons who, with Reasonable Accommodation, can perform the essential functions of the job for which they have applied or have been hired to perform. "
"Reasonable Accommodation means an employer is required to take reasonable steps to accommodate [one's] disability unless it would cause the employer undue hardship."
That is, Qualified Individuals with Disabilities must be able to perform the job duties associated with the job for which they would be hired. The USA Department of Labor also indicates that "Small Providers" do not have to make "significant structural alterations to their existing facilities" to accommodate the individual with the disability.
"The ADA (Americans With Disabilities Act) was passed in 1990, and seems to pick up where the Rehabilitation Act left off. Borrowing from the §504 definition of disabled person, and using the familiar three-pronged approach to eligibility (has a physical or mental impairment, a record of an impairment, or is regarded as having an impairment), the ADA applied those standards to most private sector businesses, and sought to eliminate barriers to disabled access in buildings, transportation, and communication. To a large degree, the passage of the ADA supplants the employment provisions of §504, reinforces the accessibility requirements of §504 with more specific regulations".
The broad reach of Section 504 is implied in the statutory language above. Section 504 covers "any program or activity receiving Federal financial assistance". Federal funds underwrite airports all over the country - it is no accident that airports were among the first American facilities to become fully accessible. Federal funds also flow to some 3,000 colleges and universities nationwide, typically in the form of grants and cooperative agreements, but also through financial assistance for students. Colleges, universities, and community colleges became accessible in the late 1970s and early to mid 1980s because of Section 504. Public libraries in many thousands of communities receive federal financial assistance, directly or indirectly. These, too, became accessible within just a few years of the implementation of section 504.
The law also pertains to any "local educational agency (as defined in section 8801 of Title 20), system of vocational education, or other school system". As applied to K-12 schools, "the language broadly prohibits the denial of public education participation, or enjoyment of the benefits offered by public school programs because of a child’s disability." Because another law, the Individuals with Disabilities Education Act (IDEA), also applies to K-12 schools, people sometimes mistakenly assume that, with IDEA, the Rehabilitation Act is superfluous. In fact, however, IDEA only protects a subset of children and youth who have disabilities—those who satisfy its definition for "child with a disability". Many young people with disabilities do not meet that definition. However, many are protected by Section 504. In addition, Section 504 can be valuable in providing rights to students for issues outside of the school day such as extracurricular activities, sports, and after school care. That is because Section 504 prohibits discrimination on the basis of disability. For example, were a basketball coach to cut a student with a disability from the team simply because he did not want to be bothered by having a player on the team who has a disability, Section 504 is what would offer the student protection against such unjust treatment. Schools comply with Section 504 with the following process: Identify students with disabilities; evaluate those students; if the student is eligible, create a written accommodation plan, often called a "504 Plan". It is similar to, but often shorter than, the IDEA Individualized Education Program (IEP). Parents, teachers, and school staff are a part of the process. Parents have due process rights; where they disagree with the determinations of the school, they have a right to an impartial hearing.
Violations of Section 504 in the educational environment can be addressed locally with the education agency or with the Office for Civil Rights (OCR) of the U.S. Department of Education. Violations of Section 504 can result in a loss of the federal funding. According to the Department individuals may also enjoy a private right of action for violations of Sec. 504. Thus, Section 504 is enforced by OCR. IDEA, by contrast, is carried out by another unit of the Department - the Office of Special Education Programs (OSEP).
Section 504 was the last sentence in the 1973 Act. However, initially Joseph Califano, U.S. Secretary of Health, Education and Welfare, refused to sign meaningful regulations for Section 504. After an ultimatum and deadline, demonstrations took place in ten U.S. cities on April 5, 1977. The sit-in at the San Francisco Office of the U.S. Department of Health, Education and Welfare, led by Judith Heumann and organized by Kitty Cone, lasted until May 4, 1977, a total of 28 days. More than 150 demonstrators refused to disband. This action is the longest sit-in at a federal building to date. Joseph Califano signed the regulations on April 28, 1977.
Over the next several years, Section 504 was somewhat controversial because it afforded people with disabilities many rights similar to those for other minority groups in the Civil Rights Act of 1964. Throughout the Reagan administration, efforts were made to weaken Section 504. Patrisha Wright and Evan Kemp, Jr. (of the Disability Rights Center) led a grassroots and lobbying campaign against this that generated more than 40,000 cards and letters. In 1984, the administration dropped its attempts to weaken Section 504; however, they did end the Social Security benefits of hundreds of thousands of disabled recipients. The Americans with Disabilities Act of 1990 extended Section 504 to much of the private sector (notably private employers, stores, hotels, and restaurants), while specifically stating that it made no amendments, weakening or otherwise, to Section 504.
Section 504 covers extracurricular and after school programs such as sports, music lessons, and after school care. 34 C.F.R. § 104.37.
The US Department of Education Office of Civil Rights has determined that Section 504 applies to
- Playgrounds - Hazelton (PA) Area School District, 17 EHLR 907 (OCR, March 7, 1991); San Francisco (CA) Unified Sch. Dist., 23 IDELR 1200 (OCR, November 26, 1995); Mill Valley (CA) Elementary Sch. Dist., 23 IDELR 1190 (OCR, October 10, 1995);
- Band Programs - Akron (OH) City Sch., 19 IDELR 793 (OCR, January 15, 1993);
- Special Programs and assemblies - Whitman-Hanson (MA) Regional Sch. Dist., 20 IDELR 775 (OCR, August 19, 1993); Atlanta (GA) Pub. Sch., 16 EHLR 19 (OCR, January 9, 1989)
- Field Trips and Off Site Programs - Ontario-MontClair (CA) Unified Sch. Dist., 24 IDELR 780 (OCR, February 7, 1996); Elk Grove (CA) Unified Sch. Dist., 21 IDELR 941 (OCR, August 1, 1994)
- Clubs - Colquitt County (GA) Sch. Dist., 25 IDELR 244 (OCR, June 6, 1996); South Central (IN) Area Special Educ. Coop., 17 EHLR 248 (September 25, 1990);
- After School and Summer Programs - Clayton (MO) Sch. Dist., 16 EHLR 766 (OCR, March 16, 1990); Conejo Valley (CA) Unified Sch. Dist., 23 IDELR 448 (OCR, June 28, 1995);
- Graduation - Aldine (TX) Indep. Sch. Dist., 16 EHLR 1411 (OCR, July 12, 1990); and
- Late Bus Transportation - Carmel Cent. (NY) Sch. Dist., 20 IDELR 1177 (OCR, September 30, 1993).
Legal Rights under Section 504
Although not in the text of the statute, courts have held that individuals have a private right of action under Section 504. While punitive damages are not available, compensatory damages are available to plaintiffs. See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (stating that punitive damages are not to be awarded under Section 504). Arguably, these rights extend to include emotional distress damages.
In addition to its responsibility for enforcing other Federal statutes prohibiting discrimination in housing, The US Department of Housing and Urban Development(HUD) has a statutory responsibility under Section 504 to ensure that individuals are not subjected to discrimination on the basis of disability by any program or activity receiving HUD assistance. Section 504 charges HUD's Office of Fair Housing and Equal Opportunity with enforcing the right of individuals to live in federally subsidized housing free from discrimination on the basis of disability. Further, Section 504 covers employment discrimination based on disability and requires HUD and HUD-assisted agencies to make reasonable accommodations for the known physical or mental limitations of an employee or qualified applicant. It covers all HUD programs except for its mortgage insurance and loan guarantee programs.
Any housing that receives federal assistance, such as Section 8 public housing, is subject to Section 504 regulations and requirements. Any person with a disability who feels himself or herself a victim of discrimination in a HUD-funded program or activity may file a complaint with HUD under Section 504. A complaint can be filed with HUD's Office of Fair Housing and Equal Opportunity. If a person with disabilities who feels subject to discrimination in a housing situation that does not receive federal assistance, they can also file a complaint through the Americans with Disabilities Act and Title VIII of the Civil Rights Act.
- "Short History of the 504 Sit in". dredf.org.
- USA Dept of Health&Human Services - Section 304 discussion
- "OASAM". dol.gov.
- David M. Richards, Attorney at Law - Richards Lindsay & Martin, L.LP.
- Title 34—Education § 300.8 "Child with a disability means a child . . . having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as ‘‘emotional disturbance’’), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services."
- "Protecting Students With Disabilities". ed.gov.
- "Disability History Timeline". Rehabilitation Research & Training Center on Independent Living Management. Temple University. 2002.
- "The Regents of the University of California. 2008. "The Disability Rights and Independent Living Movement." Berkeley, CA: The University of California Berkeley". Retrieved 6 October 2014.
- "Disability Social History Project, article title Famous (and not-so-famous) People with Disabilities". Retrieved 6 October 2014.
- "EDGE - Curriculum - Biology". disabilityhistory.org.
- "Political Organizer for Disability Rights, 1970s-1990s, and Strategist for Section 504 Demonstrations, 1977". cdlib.org.
- "Kitty Cone, Facts On File, Inc., 2009. American History Online; Facts on File information obtained from Encyclopedia of American Disability History". Encyclopedia of American Disability History.
- Section. Portal.hud.gov. Retrieved on 2013-08-15.
- Fair Housing / Equal Opportunity. Portal.hud.gov. Retrieved on 2013-08-15.
- Switzer, Jacqueline Vaughn. Disabled Rights: American Disability Policy and the Fight for Equality. Georgetown University Press, 2003.
- OCR Senior Staff Memoranda, “Guidance on the Application of Section 504 to Noneducational Programs of Recipients of Federal Financial Assistance,” January 3, 1990.
- Lynch, William, "The Application of Title III of the Americans with Disabilities Act to the Internet: Poor E-Planning Prevents Poor E-Performance," 12 CommLaw Conspectus: Journal of Communications Law and Policy 245 (2004).
- Short History of the 504 Sit in, by Kitty Cone
- The Act[dead link]
- Section 504 NICHCY[dead link]
- File a housing discrimination complaint
- Section 504 at Section 508.gov[dead link]
- Frequently Asked Questions About Section 504 and the Education of Children with Disabilities US Dept of Education
- Overview of Section 504 Section504idea.org
- Section 504 and Food Allergy Primer Primer on Section 504 and Food Allergy in Schools
- Fairbanks North Star Borough School District Section 504 Handbook Filled with forms and outlines and excellent information.
- University of Iowa Section 504 Training
- Cybertelecom :: Section 504 implications for the provision of IT
- Class Member A blog written by the mother of a class member in a statewide lawsuit regarding inclusion in education in Pennsylvania.
- USA Dept of Health&Human Services and USA Dept of Labor are Official Government Websites
- The Inherent Dilemmas of a Schedule "A" Appointee
- * Section 504: Accommodations & After-School Programs Robert Crabtree
- * Non-Academic and Extracurricular Services under Section 504 Phil Stinson, Esq.
- * Beyond the Classroom, iPAT University of Iowa