Future Reflections Winter/Spring 1991

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EDUCATION AND CIVIL RIGHTS: KNOW THE DIFFERENCE IN THE LAWS AND HOW TO USE THEM

by Seville Allen

Editor's Note: The following article is based on a speech given by Ms. Seville Allen to the 1990 Dallas, Texas, annual meeting of the Parents of Blind Children Division of the National Federation of the Blind. At that time Ms. Allen was an equal opportunity specialist with the Office of Civil Rights. Currently, she works for the U.S. Department of Defense as a system analyst. Please note that we used the new title—Individuals with Disabilities Education Act (IDEA)—instead of the original, more familiar term, Education of the Handicapped Act (EHA). Please see the preceding article, "EHA Is Out, IDEA Is In," about the amendments which made this change and others to the Education of the Handicapped Act of 1970.

The purpose of this discussion is to show how the Individuals with Disabilities Education Act (IDEA)—formerly called Public Law 94-l42, the Education of the Handicapped Act (EHA)—and Section 504 of the Rehabilitation Act of l973 (Section 504) are different and how they complement each other. The IDEA is a statute dealing with how handicapped children are educated. This legislation covers only educational issues. All states which receive federal funds for school programs under IDEA must abide by the IDEA regulations.

Section 504 is a civil rights statute which protects the civil rights of all disabled persons who are otherwise qualified to participate in and benefit from programs and activities which receive federal funds from the U.S. Department of Education. This includes the right of blind/visually impaired children to a free appropriate education. (Although Section 504 covers colleges and other post-secondary programs which receive federal education funds, for the purposes of this discussion we will concentrate on only elementary and secondary education levels.)

Although the focus is different, there are many similarities between these two laws. Both have similar (sometimes identical) provisions about a free appropriate public education, related services, evaluation and placement procedures, and due process procedures.

Before we discuss the differences between IDEA and Section 504, here is a brief overview of the IDEA requirements. The IDEA contains specific definitions of handicaps, one or more of which a child must have in order to participate in special education programs. (The definition for visually handicapped is: "a visual impairment which, even with correction, adversely affects a child's educational performance. The term includes both partially seeing and blind children.") In addition to having a disability defined by the law, the child must, because of that impairment, "need special education and related services." To enter a special education program a child must be evaluated (again, according to procedures laid out by the regulations) showing that he/she meets these qualifications for special education placement. An Individualized Education Plan (IEP) is then developed for that child. The parents or guardian of the blind child would be invited, by law, to help develop the IEP. The school district must document that genuine efforts were made to give the parents an opportunity to participate fully in the IEP process. The IEP must list annual goals and short-term objectives for the special education and related services the child needs as determined by the IEP team. Thus, for a blind child, the IEP ideally would contain goals and objectives for learning alternative techniques such as Braille, cane travel, and typing.

The IDEA also contains a due process section. This means that the parent/guardian or school officials can appeal a decision made concerning his/her child and a hearing officer (or panel of hearing officers) not connected with the school administration will consider decisions regarding the child. This is called a due process hearing. This is not a court proceeding, although there are some similarities. For example, one can call witnesses and cross-examine the opponent's witnesses. Parents will also be subject to cross-examination if they testify in the hearing. The details of who, what, when, where, and how of a due process hearing are left mostly to the individual states to decide. This means parents/school districts must go to their state departments of education to find out just how the due process hearing is arranged and conducted in their state.

These are some of the basic provisions of the Individuals with Disabilites Education Act (IDEA)—formerly the Education of the Handicapped Act (EHA). How does Section 504 differ from the IDEA, and what is the significance of those differences?

The provision of services to students in the regular classroom is the most important difference between IDEA and Section 504. Under IDEA the child has no protection UNLESS he/she qualifies for special education. But Section 504 protection applies as long as the blind/visually impaired child is eligible to attend a public school or non-public program (such as Headstart) that gets federal funds. The child does not have to be in a special education program to be covered by Section 504. The reason for this difference is that IDEA is concerned with education and Section 504 is concerned with civil rights.

Another difference between IDEA and Section 504 is in the definitions of who is handicapped. While the IDEA is concerned only with how students are educated, and specific handicaps are identified as those which will qualify a student for special education, Section 504 does not specify handicapping characteristics protected by this civil rights statute. Rather, the regulations governing this law (504) protect anyone who has a disability limiting a major life function, such as working or, for this discussion, learning. Handicapped persons means any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. This is an important difference. It is possible that a child who does not qualify under the IDEA definition of visual impairment may still qualify for protection under the Section 504 definition of handicap.

Another significant distinction between IDEA and Section 504 is in their methods of resolving disputes between parents and the school district. The IDEA due process hearing, as it was briefly described in the beginning of this article, requires that parents and school districts prepare their cases by gathering documents, soliciting witnesses, and finally defending that case against each other before a hearing officer or a panel of officers. The Section 504 process is very different. If parents believe that their child's civil rights have been violated under Section 504, they contact their federal regional civil rights office and fill out the appropriate forms and provide the necessary documentation. The civil rights office then assigns the complaint to a federal civil rights investigator. That investigator examines the evidence, interviews the parties involved, and then makes a recommendation to the civil right attorney based on the evidence and merits of the case. In many ways this method is less painful and confrontational than the due process procedure under IDEA.

Therefore, if you believe that your child is not receiving appropriate educational services, it is your right to file a complaint with the Office for Civil Rights (0CR) in your region, and that office will investigate your allegation. If you should decide to file a complaint alleging that a school district is discriminating or has discriminated against your child, here are some pointers on things to emphasize: If the complaint is in academic areas, emphasize interference with learning; if the complaint is in the area of participation in nonacademic activities, including school-provided transportation, emphasize the denial, based on a handicapping condition, of an opportunity to participate in a school-sponsored program.

The question now is, in what situations might one use Section 504 protection instead of, or in addition to, the due process protection under IDEA? Here are some examples.

A. A visually impaired child is evaluated and denied special education services because her visual acuity doesn't meet the state requirement: She has a visual acuity of 20/40 and the state says they can't serve anyone unless they have a visual acuity of 20/70 or worse. The parents argue that her vision is deteriorating and that she cannot see the blackboard or read regular print books. They want large print books and adaptations in the classroom so she can participate in and benefit from the educational program. In this case, a complaint under Section 504 and a IDEA appeal for a due process hearing are appropriate. However, the parents may get faster and better results from the Section 504 appeal. Although the parents may eventually win an appeal under IDEA, they might be more successful arguing that the child meets the Section 504 definition of "handicapped." They can also argue, under Section 504, that she is being excluded from and denied the benefits of the educational program because the school will not provide large print books or necessary adaptations in the classroom.

B. The parents of a partially sighted blind child have requested that Braille instruction be added to the child's IEP. The school district has denied the request even though a private evaluation obtained by the parents recommends Braille instruction. There is evidence that the child is unable to participate equally with her classmates because she lacks Braille reading and writing skills. In this case the parents may utilize both, or either, statutes—IDEA and Section 504. The parents may be able to argue successfully that the child has been denied her civil right to an education because her ability to learn has been blocked by the denial of Braille instruction.

C. Parents of a blind high school student have applied to a private high school. The private school receives some federal funding from the U.S. Department of Education. The private school denies the application on the basis of blindness, while in all other respects the student qualifies for admission to the school. What protection does the student have? None under IDEA, but Section 504 will apply to this situation providing the student does not require special education services or instruction not offered by the private school. If the student will only require materials and reasonable adaptations in the classroom, and the school is subject to Section 504 jurisdiction, then the parents may be able to file a successful 504 complaint and compel the school to enroll their blind son in the program.

D. Another example, similar to the one just described, is that of a blind student who attends the public school but no longer requires special education instruction. She only needs materials (such as Braille or large print textbooks), adaptations in the classroom (such as a method of getting information from the blackboard), and adaptations so she may participate in regular P.E. (equal alternatives to ball games or adaptations to the game so she may participate), home economics (such as tactile markings on the oven and sewing machine), computer class (such as a live reader or speech output so she may read the screen) or technical education (such as a click rule for measuring). Because of Section 504 protection the school may not refuse to provide the related aids and services which will make it possible for her to have an equal opportunity for participation.

These two laws, the Individuals with Disabilities Education Act (formerly the Education of All Handicapped Act—EHA) and Section 504 of the Rehabilitation Act of 1973, have provisions which guarantee the rights of blind/visually impaired children to a free appropriate education. However, we must still be advocates for our children. These laws will not work if we are either not aware of them or do not learn how to apply them.

For more information about the Individuals with Disabilities Edcuation Act (IDEA) write to: OSERS, 400 Maryland Avenue, S.W., Washington, D.C. 20202.

For more information about how Section 504 of the Rehabilitation Act of 1973 applies to the education of handicapped students, contact the appropriate Office for Civil Rights regional office as listed below:

U.S. Department of Education, Office for Civil Rights
Regional Civil
Rights Offices
REGION I
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont
Regional Civil Rights Director
Office for Civil Rights, Region I
U.S. Department of Education
John W. McCormack Post Office Square
Room 222
Boston, Massachusetts 02109
(617) 223-9662 TTY (617) 223-9324

REGION II
New Jersey, New York, Puerto Rico, Virgin Islands
Regional Civil Rights Director
Office for Civil Rights, Region II
U.S. Department of Education
26 Federal Plaza, 33rd Floor
New York, New York 10278
(212) 264-4633 TTY(212) 264-9464

REGION III
Delaware, District of Columbia, Maryland, Pennsylvania, Virginia,West Virginia
Regional Civil Rights Director
Office for Civil Rights, Region III
U. S. Department of Education
Gateway Bldg.,
3535 Market Street, Room 6300
Post Office Box 13716
Philadelphia, Pennsylvania 19104-3326
(215) 596-6791 TTY (215) 596-6794

REGION IV
Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee
Regional Civil Rights Director
Office for Civil Rights, Region IV
U.S. Department of Education
101 Marietta Tower, Suite 2700
Atlanta, Georgia 30301

REGION V
Illinois, Indiana, Minnesota, Michigan, Ohio, Wisconsin
Regional Civil Rights Director
Office for Civil Rights, Region V
U.S. Department of Education
401 South State Street, 700-C
Chicago, Illinois 60605
(312) 353-2520 TTY (404) 331-2010

REGION VI Arkansas, Louisiana, New Mexico, Oklahoma, Texas
Regional Civil Rights Director
Office for Civil Rights, Region VI
U.S. Department of Education
1200 Main Tower Building, Suite 2260
Dallas, Texas 75202
(214) 767-3936 TTY (214) 767-3315

REGION VII Iowa, Kansas, Missouri, Nebraska
Regional Civil Rights Director
Office for Civil Rights, Region VII
U.S. Department of Education
10220 North Executive Hills Boulevard, 8th Floor
P. O. Box 901381
Kansas City, Missouri 64190-1381
(816) 891-8026
TTY(816) 374-7607

REGION VIII
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming
Regional Civil Rights Director
Office for Civil Rights, Region VIII
U.S. Department of Education
1961 Stout Street, 3rd Floor
Denver, Colorado 80294
(303) 884-5695 TTY(303) 844-3417

REGION IX
Arizona, California, Hawaii, Nevada, Guam, Trust Territory of the Pacific Island, American Samoa
Regional Civil Rights Director
Office for Civil Rights, Region IX
U.S. Department of Education
221 Main Street, 10th Floor
San Francisco, California 94105
(415) 227-8020 TTY(415) 227-8124

REGION X
Alaska, Idaho, Oregon, Washington
Regional Civil Rights Director
Office for Civil Rights, Region X
U.S. Department of Education
2901 Third Avenue, Room 100
Seattle, Washington 98121
(206) 442-1636 TTY(206) 442-4542

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