For nearly 100 years, parents with disabilities have experienced fewer rights than their non-disabled peers.
The Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act (ADA) protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services.
Despite legal protections, parents with disabilities still are referred to child welfare services and permanently separated from their children at disproportionately high rates.
Parents who believe they have experienced discrimination may file an ADA complaint online, by mail, or by fax. Another option is to file a complaint with the Office for Civil Rights through the Department of Health and Human Services (HHS). Read on for details about how and where complaints are filed.
In 1923, the Supreme Court of the United States (SCOTUS) established parental rights, but four years later parents with disabilities were denied those protections. In Buck v. Bell, May 2, 1927, SCOTUS ruled that persons with disabilities do not have fundamental rights to make private decisions regarding family life. The Americans with Disabilities Act (ADA) in 1990 attempted to correct some disparities, but parents with disabilities still have their children removed from their homes at disproportionate rates.
In the United States, 4.1 million parents have disabilities.
1 in 10 children have a parent with a disability.
5.6 million Americans live with paralysis from stroke, multiple sclerosis, spinal cord injury, traumatic brain injury, neurofibromatosis, cerebral palsy, post-polio syndrome or other issues.
35 states include disability as grounds for termination of parental rights.
Two-thirds of dependency statutes allow courts to determine a parent unfit, based on disability.
In every state, disability of the parent can be included in determining the best interest of the child.
The District of Columbia, Georgia, Kansas, Maryland, Mississippi, North Dakota, New Mexico, Ohio, Oklahoma, and South Carolina allow physical disability as the sole grounds for terminating parental rights, without evidence of abuse or neglect.
The ADA prohibits discrimination based on disability
The ADA makes it unlawful to discriminate against individuals with disabilities in all areas of public life, including jobs, schools and transportation. The federal law, which is upheld by the Office for Civil Rights, covers all public and private places that are open to the general public. Under the ADA, people with disabilities have the right to equitable access. Equity doesn’t mean equal: It means that accommodations are provided to ensure access to something that everyone else has access to.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law. The ADAAA made significant changes to the definition of disability. The ADA is organized in sections called “Titles,” and the ADAAA changes applied to three Titles of the ADA:
Title I: Covers employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees
Title II: Covers programs and activities of state and local government entities, including child welfareagencies and court systems
Title III: Covers private entities that are considered places of public accommodation
Equitable parenting opportunities are a Civil Right
Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services. Section 504 also protects students with disabilities, and PAVE has an article about that.
The goal of the ADA and Section 504 as it applies to parents and prospective parents is to ensure equitable access to parenting opportunities. Also, these Civil Rights laws recognize that separation of parents from their children can result in long-term negative outcomes. The ADA requires child welfare agencies to:
Give a fair chance to parents with disabilities so they can take part in programs, services, or activities.
Provide help to make sure people with disabilities understand what is being said or done.
Prevent barriers that make programs, activities or services hard to access because of disability.
Title II of the ADA and Section 504 also protect “companions”—people who help individuals involved in the child welfare system. A companion may include any family member, friend, or associate of the person who is seeking or receives child welfare services. For example, if a helper person is deaf, the child welfare agency provides appropriate auxiliary aids and services to ensure effective communication.
Discrimination leads to family separation
According to a comprehensive 2012 report from the National Council on Disability (NCD), parents with disabilities are often inappropriately referred to child welfare services. Once involved, these agencies permanently separate families impacted by disability at disproportionately high rates.
According to the report, discrimination most commonly involves parents with intellectual and psychiatric disabilities. Parents who are blind or deaf also report significant discrimination in the custody process, as do parents with other physical disabilities. Individuals with disabilities seeking to become foster or adoptive parents encounter bias and barriers to foster care and adoption placements. The NCD linked the discrimination to stereotypes and speculation about parenting ability rather than evidence of problems in the home. The agency found a lack of individualized assessments and that many families weren’t receiving needed services.
The ADA and Section 504 provide Civil Rights protections against retaliation or coercion for anyone who exercises anti-discrimination rights. ADA complaints can be filed online, by mail, or by fax.
Individuals also may file complaints with the Office for Civil Rights at the Department of Health and Human Services (HHS). For instructions to file in English or other languages, go to How to File a Civil Rights Complaint.
Always save a copy of the complaint and all original documents.
For more information about the ADA and Section 504, call the Department of Justice ADA information line: 800-514-0301 or 800-514-0383 (TDD), or access the ADA website.
Visit the following websites for additional information:
Section 504 is part of the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights.
This law protects access rights to public places and programs for individuals with disabilities. Accommodations that support access are guaranteed, and not providing access is a form of discrimination.
All students with qualifying disabilities are part of a protected class under Section 504, including those on 504 Plans and those on Individualized Education Programs (IEPs).
Section 504 protects a person with disabilities throughout life and covers individuals at work and in any public facility or program.
Key terms are equity and access to opportunity. A government-funded place or program provides whatever is needed so the person with a disability can benefit from the place or program. The opportunity is equitable when supports provide a way for the person to overcome the barrier of disability (to the maximum extent possible) to access the place or program that everyone else has the right to access.
Section 504 defines disability as an impairment that impacts a major life activity. If a student in school meets criteria, then the school provides what a student needs to access a Free Appropriate Public Education (FAPE) in the general education setting.
A Section 504 Plan determines what a student needs to receive equitable benefit from school.
Section 504 is part of a law called the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights. This law is about access–to a public place or program. Section 504 protects a person for life and allows every student, employee or guest in a public institution to ask for and expect supports and productivity enhancers–what they need to succeed.
All children with disabilities who qualify for special services in school are protected by the provisions of the Rehabilitation Act. Students who qualify for Special Education are protected by Section 504 and the Individuals with Disabilities Education Act (IDEA). Children protected by IDEA have Individualized Education Programs (IEPs), and children who qualify for some support but do not meet the IDEA’s specific criteria may have Section 504 Plans. This article is primarily about Section 504 Plans. For more detailed information about the IEP, PAVE provides an article, Get Ready for School with IEP Essentials.
Education rights are like a pyramid: At the top of the pyramid is the IDEA (Individuals with Disabilities Education Act), which provides a full menu of special education programming and services for qualifying students. Children at the top of the pyramid have all the protections of each of these laws.
At the center of the pyramid is Section 504, part of the Rehabilitation Act of 1973, which guarantees non-discriminatory rights to equitable access for individuals with disabilities.
ESSA (Every Student Succeeds Act) is at the bottom, providing all children in the United States the right to a free public education “to ensure that every child achieves.”
Schools are bound by Section 504 as “covered entities,” places or programs that receive money from the U.S. government. Schools provide access to Free Appropriate Public Education (FAPE) by helping students with 504 Plans to succeed in regular classrooms and school settings. The goal is to meet the student’s needs as adequately as the needs of nondisabled students to offer equity and access to opportunities. Keep reading to learn more about what equity truly means.
Section 504 defines disability as an impairment that impacts a major life activity. A school team considers a variety of information to consider whether a student qualifies for a Section 504 Plan. A formal evaluation is not required, and parent involvement is voluntary. The team asks:
Does the student have an impairment?
Does the impairment limit one or more major life activities?
The law is intentionally broad, so it doesn’t limit the possible ways that a student who needs help can qualify for that help. A list of possible impairments is, therefore, unlimited. Here are a few examples:
Physical disability that might affect mobility, speech, toileting or a human function: Spina Bifida, deafness, dwarfism, loss of a limb
Cognitive, psychiatric, or emotional disorder: intellectual disability (Down Syndrome), a specific learning disability (Dyslexia), a brain illness or injury (bipolar disorder, Traumatic Brain Injury), an emotional disturbance (anxiety, depression)
Major bodily functions: disease of the immune system, digestive or urinary issues, an impairment of the nervous system or heart
A list of major life activities is also endless. Whether an impairment “substantially” limits a major life activity is determined individually. Some impairments affect the ability to practice self-care, and challenges in basic life tasks like walking, seeing, hearing, speaking, breathing, learning, and working are captured. Someone with sensory challenges might struggle to concentrate, think and communicate—all of those can qualify as major life activities. Really, any system in the body might have a challenge that creates a barrier for an individual and therefore can qualify as a disability.
Sometimes a Section 504 Plan provides adequate support, and sometimes the family and school consider whether the student qualifies for an IEP with a full menu of special education protections. A 2018 federal court ruling in favor of a student with Crohn’s disease provides an interesting example. Parents had provided the school with information about his diagnosis and requested an evaluation for services. Their request was denied. The Third Circuit Court found the school in violation of the student’s right to appropriate evaluation under the Child Find Mandate. The court also found that the school should have provided special education services, not only accommodations with a Section 504 Plan:
“In seeing Crohn’s as something requiring only a Section 504 accommodation, not IDEA special education, [the district] treated the disease as something discrete and isolated rather than the defining condition of [this student’s] life.”
An online search can find a range of information related to Crohn’s Disease or other specific medical conditions and how to design a specific educational plan to meet a student’s needs. The Crohn’s and Colitis Foundation, for example, provides a template for a Section 504 Plan for a student with serious medical issues related to digestion.
Equity doesn’t mean Equal
Supports and services for a student with a disability seek to provide equity. Equal opportunity would mean that all students get the same help. Getting the same help doesn’t give all students the same opportunity. In this picture, on the left, the little guy in the light blue shirt can’s see the game, even though he’s got the same platform as the taller guy. He needs a different platform to have the same opportunity to see the game.
The help that makes access to learning equitable puts the word Appropriate in FAPE– Free Appropriate Public Education.
Students with known disabilities get help and productivity enhancers to access the opportunities for success that all students have. If they need a taller crate—or an extra teacher, or a special swing on the playground, or training in Social Emotional Learning (SEL) or something else specific that gives them the same opportunity to learn, grow and benefit from school, then their civil right is to get the boost they need to have an equitable opportunity.
Accommodations and services create equity in order to give people a fair opportunity to succeed. This level of fairness can be called justice.
Under Section 504, individuals with impairments have a right to get into public places—with ramps, elevators, braille labels on doors…whatever is needed for physical access. Other aspects of access are less obvious. Individuals with unseen disabilities have the right to accommodations that will make a program or service as effective for them as it is for the general population.
Positive behavior supports through a are an example of an accommodation that can help a student with a disability access the major life activity of learning. A BIP can be a stand-alone plan or can accompany a Section 504 Plan or an IEP. A BIP is developed after the school conducts a Functional Behavior Assessment (FBA). Parents sign consent for the school to conduct an FBA.
Section 504 Supports Inclusion and Bars Discrimination
Section 504 includes elements of inclusion. A person with a disability has the right to access the regular program unless special help and different options cannot work to provide that person with benefit from the program or service.
This is important in education: Students have the right to get help so they receive an equitable benefit from learning in the general education classroom. They move to a more specialized setting only if those supports fail to provide appropriate and equitable access. This is true for students on 504 Plans and IEPs.
Under Section 504, any alternative space or program must be “comparable.” Clearly, that’s subjective, but it’s important language to include in any discussion with the school if parents have concern that a child is not receiving an education that is equitable or comparable to that being offered to typically developing students.
According to the Office of Civil Rights, as an institution that receives government funding, a school is bound to avoid policies that might on purpose or accidentally exclude persons with disabilities. In other words, if a school’s policy or action creates a barrier to access for a student with a disability, the school might be cited for discrimination if the Office of Civil Rights did an investigation.
Here are examples of how Section 504 might impact a student:
The school helps a student succeed with other students in the regular classroom, which is the most integrated setting.
If the student needs extra help or technology or a special place to sit, he/she gets that because the school is ensuring accessibility.
If the student needs to take a different test or get a homework deadline changed, then the school makes those reasonable modifications, which don’t fundamentally alter the program.
An auxiliary aid might be a 1:1 para, and the school district provides that.
Section 504 Protects Students Everywhere at School
Access rights are not limited to the classroom but include all aspects of school and learning. This is just a short list of school settings that are governed by Section 504:
PE (Physical Education)
Are Parents Part of the Section 504 Team?
The Rehabilitation Act doesn’t require schools to involve family members in the administration of a 504 plan. However, the plan is managed by a responsible school staff member who notifies parents before a student is evaluated or placed on a 504 Plan and provides parents/guardians with a copy of the plan.
The school also provides written notification to parents about their rights to disagree through grievance procedures. The document that describes these procedures is called “procedural safeguards.” If a parent requests a formal evaluation for special education services, and the school district refuses, the school district must provide the parent with a written copy of the procedural safeguards.
How is a 504 Plan Different from an IEP?
The decision to include parents in 504 team meetings is determined by each school district. However, parents may contribute information such as doctor reports, outside testing reports and personal reflections and concerns. Schools are expected to make sound educational decisions about what the child needs to be successful.
The fact that parent participation is not a guarantee of the law makes Section 504 different from the IDEA, which requires parental involvement in the IEP process. Here are a few other differences between these two laws:
A 504 Plan is nearly always implemented within the general education setting, whereas an IEP may include placement in a variety of inclusive and specialized settings.
A 504 will NOT include academic goals, benchmarks, or measurements, which are key features of an IEP.
Under Section 504, a qualified student with a disability is protected regardless of whether the student needs special education.
An IEP is an educational program that follows a student through high school; a 504 Plan is a Civil Rights protection that follows a person throughout the lifespan.
Remember, Section 504 is about equity and access, and the protections of the Rehabilitation Act cover students on Section 504 Plans and IEPs.
How are Discipline and Behavior addressed by Section 504?
Students with disabilities are a protected class when schools administer disciplinary actions. If a student with a disability is suspended for multiple days within a school term, the school is required to have a meeting called a Manifestation Determination meeting. This requirement specifically states that schools hold this meeting by the 10th day of suspension.
The school and family will go through a specific set of questions to determine whether the behavior that led to the suspension was caused by some aspect of the student’s disability. In other words, did the behavior manifest from the disability?
At that meeting, the team will decide whether the school followed the 504 Plan, the IEP, the specific behavior plan and/or its own disciplinary policies in making the decisions about what to do. If the team determines that the student’s disability was the cause of the behavior and/or that the school didn’t follow procedure, then the student may qualify for Compensatory Services—additional learning time—to make up for missed education during the suspension.
For a student with a Section 504 Plan, this meeting can also direct the school to conduct a comprehensive educational evaluation to see if the student’s disability qualifies that student for the full menu of special education options available under the IDEA—including an IEP. A website called School Psychologist Files has an article and a chart comparing Section 504 and IEP.
Here are a few points related to Section 504, discipline and behavior:
Students with disabilities can be disciplined.
Students with disabilities have special protectionsregarding discipline.
Schools cannot change a student’s “placement” without following the rules. Placement is where the student receives learning. If the school disciplines a student with a 504 Plan in a way that changes the location where the student receives education, this may constitute a change in placement. The Office of Civil Rights has specific laws that govern what constitutes a change in placement and how schools respond.
Students with disabilities are a protected class. Schools have the right to discipline students to keep everybody safe, but the schools are bound by specific rules and regulations to make sure that their disciplinary actions aren’t discriminatory.
If a student with a disability keeps getting taken out of class because of behaviors, then the disciplinary actions might add up to a significant change in placement. The law states that this change is placement triggers a re-evaluation and opens the possibility that a higher level of special education service might be needed to support and protect this student with a disability.
Rules for Schools
Some parents are anxious about questioning actions taken by the school. It’s important to remember that parents also have protections under the law. The Office of Civil Rights maintains specific guidelines that do not allow schools to retaliate against parents for asserting their rights to participate in a student’s education.
Parents can reach out directly to the Office of Civil Rights:
OCR Seattle Regional Office at: 206-607-1600
National: 800-877-8339 (TTY) or Federal Relay Service (FRS) at 1-800-877-8339
Here are some additional resources for information about Section 504:
The United States Department of Health and Human Services: HHS.Gov