Section 504 and Deaf and Hard of Hearing Children in Public Preschool, Elementary and Secondary Schools
Many deaf education professionals and parents of deaf children are familiar with the Individuals with Disabilities Education Act (IDEA). Children who are deaf or hard of hearing and meet IDEA's eligibility requirements receive special education and related services under this law. In order for a deaf or hard of hearing child to qualify for IDEA services, the child's hearing loss must adversely affect his educational performance. Therefore not all deaf and hard of hearing students are served by IDEA.
Another law protects deaf and hard of hearing children from discrimination in public school, even if the child's hearing loss does not impact his educational performance. That law is Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 504 prohibits discrimination on the basis of disability by public and private entities that receive Federal financial assistance. Public schools receive financial assistance from a number of Federal programs, therefore must comply with Section 504 mandates.
In order for an individual to be eligible for Section 504 protections, he must be determined to:
• have a physical or mental impairment that substantially limits one or more major life activities; or
• have a record of such an impairment; or
• be regarded as having such an impairment.
The term "physical impairment" includes impairments affecting special sense organs. The term "major life activities" includes hearing. Since deaf and hard of hearing students are considered to have a physical impairment that substantially limits the major life activity of hearing, these students are protected by 504.
Children who are served through IDEA already have been determined to have a disability, therefore these children are eligible for both IDEA and Section 504 protections.
In determining whether a student is eligible for Section 504 coverage, schools must not consider the ameliorating effects of any mitigating measures the student is using. The term "mitigating measures" includes:
• hearing aids
• cochlear implants
• other implantable hearing devices
• use of assistive technology
• reasonable accommodations
• auxiliary aids or services
• learned behavioral or adaptive neurological modifications.
So, in determining whether or not a deaf child is eligible for Section 504 protections, one cannot consider the effects of hearing aids, cochlear implants, the child's learned behaviors, or other such measures. The child's deafness must be considered without regard to these devices or behaviors.
In order to determine a child's eligibility under Section 504, school districts must perform an evaluation. Schools must establish standards and procedures for these evaluations as well as periodic reevaluations.
Section 504 provides: "No otherwise qualified individual with a disability in the United States . . . 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 . . . ."
This means that schools must take steps to ensure that students with disabilities, including deaf and hard of hearing students, are able to participate in the activities of the school. Public schools must provide a free appropriate public education (FAPE) to qualified students with disabilities. To do so, a school must provide regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities. "Qualified" students are those that meet the eligibility requirements of the educational program. For instance, a school might have a rule requiring it to draw its students from a particular geographic area. A child who does not live in that area would not be considered a qualified student. It would not be discrimination for a school to deny a student entry to a program for which he has not met the requirements.
The child's educational needs must be met as adequately as the needs of students without disabilities are met. Although, as mentioned above, IDEA is a law independent of Section 504, implementation of an Individualized Education Program developed in accordance with IDEA is one means of meeting the FAPE requirement.
School districts are required to provide FAPE and make the classroom accessible, and they are also required to provide non-academic and extracurricular services and activities in a way such that 504 students have an equal opportunity to participate. Nonacademic and extra curricular services and activities may include:
- counseling services
- physical recreational, including physical education courses or interscholastic, club, or intramural athletics
- health services
- recreational activities
- special interest groups or clubs sponsored by the school.
Section 504 requirements apply to all activities of the school. Therefore, schools are required to provide accommodations for, for example, parents with a disability who request accommodations. Section 504 also applies to post-secondary institutions, such as colleges. Section 504 does not require a written plan, although many school districts have developed a document for such use. Often this is called a "504 Plan."
Schools must establish and implement a system of procedural safeguards. Procedural safeguards must include:
- notice to the parent or guardian regarding identification, evaluation, and placement of the child
- an opportunity for the parents or guardian to examine relevant records
- an impartial hearing to resolve disputes between the parents or guardians and the school, with opportunity for participation by the child's parents or guardian and representation by counsel
- a review procedure to allow an opportunity to appeal the impartial hearing decision.
Compliance with the procedural safeguards of IDEA is one means of meeting this requirement.
If you believe a school is violating Section 504 you may file a complaint with the school's Section 504 coordinator. If you are not satisfied with the outcome at the school level you can file a complaint with the U.S. Department of Education at http://www2.ed.gov/about/offices/list/ocr/complaintintro.html. The U.S. Department of Education's Office for Civil Rights enforces Section 504.