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  • Joe Castellucci

Special Education Primer, PART V: Section 504 of the Rehabilitation Act of 1973

Updated: Apr 23, 2021

Section 504 of the Rehabilitation Act of 1973 ("Section 504"), as amended, provides an independent source of rights for children with special needs in addition to the entitlements found in the Individuals with Disabilities Education Act ("IDEA"). Children with special needs are afforded protections under both the IDEA and Section 504.

Section 504 affords “qualified individuals with a disability” freedom from discrimination by any program or activity receiving federal financial assistance. Individuals with disabilities may not be excluded from participation in or denied the benefits of these activities and programs solely on the basis of their disability.

Applied to schools, the language of Section 504 broadly prohibits the denial of participation in or the enjoyment of the benefits offered by public school programs due to a child’s disability. This means that a public school district in New Jersey may not exclude students with special needs from athletic programs, clubs, school trips, academic programs, or generally anything that is available to their nondisabled peers solely on the basis of the child’s disability.

As noted above, in order to be eligible for the protections provided by the Section 504, the law requires that a person must be a “qualified individual with a disability.” So what does this mean under the law?

A "qualified individual with a disability" is any person who has a "physical or metal impairment" which "substantially limits" one or more of such person’s "major life activities", "has a record of such impairment", or "is regarded as having such impairment". Section 504 requires that the criteria highlighted in bold be met in order to obtain protection under the law.

As used in this section of the Act, the phrase “physical or mental impairment” means that there are a host of physical and mental disorders and conditions – ranging, for example, from a child suffering from a musculoskeletal condition which leaves that child bound to a wheelchair, to a child suffering from autism spectrum disorder – that would qualify for protection. Indeed, the law has been interpreted broadly by the courts in order to ensure that many categories of disability fall under the protections of the Section 504.

“Substantially Limits” means that an individual is unable to perform a "major life activity" that the average person in the general population can perform. It can additionally means that someone is significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the average person.

In determining whether an individual is "substantially limited" in a "major life activity," the following factors are considered: the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanency or long-term impact of or resulting from the impairment. Furthermore, the term “major life activities” refers to functions, to name a few, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The Third Circuit Court of Appeals, which is the Appeals Court for the Federal District Court of New Jersey, held that the standard to determine a major life activity “is its importance or significance,” and an activity which is “central to the life process.” Notably, this is a broad definition that encompasses many "functions".

When a person “has a record of such an impairment” it means that he or she has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. And “is regarded as having an impairment” means, in simple terms, that a person has a physical or mental impairment that does not substantially limit major life activities but that he or she is treated by a recipient of federal funds as having such a limitation.

In addition to the foregoing, The Third Circuit has failed to adopt a bad faith or gross misjudgment standard in establishing a prima facie case of discrimination under Section 504. Alternatively, in order to establish a violation of Section 504, the Court held that plaintiff must prove that (1) he or she is “disabled” as defined by the Act; (2) is “otherwise qualified” to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) the plaintiff was excluded from participation in, denied the benefits of, or subject to discrimination at the school.

As anyone can see reading this post, there is a fairly complicated legal analysis in making an initial determination of who is covered by the protections Section 504 of the Rehabilitation Act. There is also a voluminous body of accompanying case law that further defines Section 504. This is an area of law that is best left to an experienced attorney.

If you or your child have been subjected to unlawful discrimination under Section 504, please contact the Law Office of Joseph D. Castellucci, Jr. today. We possess decades of experience in handling all school law and special education matters. We are a boutique law firm practicing in Morristown, New Jersey with a focus on providing our clients with personalized and compassionate representation with driven results. Contact our office today to schedule a consultation: (973) 285-3253.

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