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Have you noticed more students requesting Section 504 accommodations? In February 2024, the U.S. Department of Education’s Office for Civil Rights (OCR) recognized the growing need to inform schools about students’ legal protections under Section 504 by releasing four new guidance documents (U.S. Dept. of Educ., Feb. 20, 2024). Related to the increasing attention on Section 504, this article summarizes two recent U.S. Supreme Court decisions relevant to Section 504 and provides recommendations about how school leaders should respond.

Before delving into the court cases, it’s important to distinguish how the Individuals with Disabilities Education Act (IDEA) differs from Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA). While IDEA, Section 504, and the ADA all provide legal protections for students with disabilities (SWD), one important key difference is how they define disability. IDEA, which provides funding to states as long as they comply with its mandates, focuses on ensuring certain SWD are making educational progress as outlined by their Individualized Education Program (IEP). To be eligible under IDEA, students must fit into any of the 13 disability categories and need special education and related services due to their disability (34 CFR § 300.8).

On the other hand, Section 504 and ADA prohibit disability-based discrimination in schools receiving federal funding (Section 504) and even schools that do not (ADA). To be eligible under Section 504/ADA, students must have “a physical or mental impairment that substantially limits one or more major life activities” (or have a record of an impairment or be regarded as having an impairment) (ADA, 1990). Section 504/ADA covers medical issues like diabetes or epilepsy and psychological issues like depressive, eating, anxiety, and post-traumatic stress disorders as long as these issues substantially limit a major life activity such as learning, walking, breathing, or caring for oneself.

Therefore, SWD attending public schools who are eligible under IDEA are also protected by Section 504/ADA. However, some students covered by Section 504/ADA are not eligible under IDEA. For example, a student with severe food allergies would be considered as having a disability and entitled to reasonable accommodations under Section 504/ADA but not be entitled to an IEP under IDEA. To outline what reasonable accommodations a student needs—like a nut-free classroom—schools create Section 504 Plans. That said, it is possible for SWD with IEPs to also be eligible for a separate Section 504 Plan (e.g., a student with autism with severe food allergies). In these cases, the IEP would outline the educational goals and services, whereas the Section 504 Plan would outline the reasonable accommodations necessary so that the student may access their education.

Another key difference between IDEA and Section 504/ADA is procedural: Students/families alleging IDEA violations must exhaust their administrative remedies, which means they must complete dispute resolution procedures (e.g., mediation, due process hearings) before filing a case in court. However, students/families alleging disability discrimination under Section 504/ADA usually can bring their case directly to court. In practical terms, students/families may prefer to file a Section 504/ADA lawsuit because 1) the dispute could be resolved more quickly and 2) they could win monetary damages (which are unavailable under IDEA).

Recent Supreme Court Decisions

As the national average of 504-only students continues to rise (Zirkel & Gullo, 2024), school leaders must understand the implications of two recent Supreme Court decisions and their implications related to IDEA’s exhaustion requirement. The first case, Fry v. Napoleon (2017), involved Ehlena Fry, a child with cerebral palsy. Ehlena wanted her service dog to accompany her at kindergarten to assist her with daily tasks such as retrieving dropped items and helping her balance. The school refused, arguing that Ehlena’s aide provided sufficient support and the dog was unnecessary. Dissatisfied with the decision, the Frys began to homeschool Ehlena.

Eventually, the Frys filed a lawsuit alleging that the school district violated ADA and Section 504. Two lower courts ruled that IDEA required the Frys to exhaust administrative remedies. The Supreme Court disagreed, reasoning that IDEA’s exhaustion requirement doesn’t apply when the nature of the harm alleged is separate from IDEA’s guarantee of a Free Appropriate Public Education (FAPE).

In a related decision, Perez v. Sturgis Public Schools (2023), Miguel Luna Perez, a deaf student, was enrolled in the same school district for 11 years. Miguel had received As and Bs and continued to progress through the grade levels. However, when it came time to graduate, the school informed him that instead of a diploma, he would receive a certificate of completion.

Perez filed an IDEA due process complaint against the school, alleging a FAPE violation because his sign language interpreters were unqualified and repeatedly absent. Ultimately, the complaint was settled, and the school district agreed to provide Miguel with compensatory education, a remedy available under IDEA.

Following the IDEA settlement, Perez sued the school district for disability discrimination under the ADA. The district argued that Perez had not exhausted all the required IDEA administrative remedies, and two lower courts sided with the school district.

However, the Supreme Court disagreed, concluding that Perez did not have to exhaust IDEA’s administrative processes, because the relief sought was unavailable under IDEA, specifically monetary damages.

Legal Implications

Importantly, the Perez Court expressly stated that its decision would not allow students/families to simply bypass administrative procedures to strategically get monetary damages. The Court explained that when students/families allege violations of both Section 504 and IDEA, the Section 504 claims may be deferred until the students/families exhaust their administrative remedies.

As a result of Fry and Perez, courts now apply this two-part test to determine whether students/parents must exhaust their administrative remedies:

Importantly, as illustrated by the Third Circuit’s decision in I.K. v. Manheim Township School District (2023), exhaustion remains a requirement when students/families seek relief offered under IDEA, such as compensatory education or tuition reimbursement.

Despite recent changes to the exhaustion requirement, students/families still may have difficulties recovering monetary damages under Section 504 because the bar is high. Courts require students/families to demonstrate that the school acted with bad faith or gross misjudgment to recover money damages (Baker v. Bentonville Sch. Dist., 2023).

Recommendations

Regardless of the recent court cases, school leaders should prevent Section 504/ADA violations from arising in the first place. The following suggestions are intended to help school leaders respond to the increase in requests for Section 504 accommodations and better serve SWD.

1. Educate staff about how Section 504 and IDEA differ. Some educators fail to recognize the important reasons why some students need Section 504 Plans and others need IEPs. Educators may also be unaware that some students need both. Therefore, instruct staff to distinguish reasonable accommodations (Section 504/ADA) from educational entitlements (IDEA), and understand other key differences between the disability laws. By increasing the legal literacy of your staff, SWD are more likely to be properly identified and receive the support they need.

2. Ensure timely re-evaluation of Section 504 Plans. While Section 504 does not have a specific requirement for when schools must reevaluate students’ Section 504 accommodations, guidance from the U.S. Department of Education (2023) states, “Periodic re-evaluation is required. This may be conducted in accordance with the IDEA regulations, which require re-evaluation at three-year intervals (unless the parent and public agency agree that re-evaluation is unnecessary) or more frequently if conditions warrant, or if the child’s parent or teacher requests a re-evaluation, but not more than once a year (unless the parent and public agency agree otherwise).” Re-evaluations must also occur before any significant change in placement, including removal of placement beyond 10 days (e.g., expulsion).

3. Encourage open communication between schools and families. One of the major issues in the Perez case was a lack of communication between the school and the Perez family, leading to confusion about his academic progress. School leaders must maintain collaborative relationships with families of SWD by a) viewing parents/caregivers as vital partners who can provide key information about how to better accommodate and/or educate SWD; b) ensuring parents/caregivers are informed of the student’s progress and ongoing needs; and c) keeping parents/caregivers informed of their rights under the IDEA/Section 504/ADA.

Janet R. Decker, JD, PhD, is an associate professor of education at Indiana University and a co-author of Legal Rights of School Leaders, Teachers, and Students. Kayla Bridgham is a JD candidate at Indiana University’s Maurer School of Law, where she is completing a minor in education policy. Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Amana Seaton is a junior at Pennsylvania State University, where she is pursuing a degree in political science, Spanish, and public policy.

References

Americans With Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (1990). ada.gov/pubs/adastatute08.htm

Baker v. Bentonville Sch. Dist., 75 F.4th 810 (2023).

Child with a disability, 44 C.F.R. § 300.8 (2017). ecfr.gov/current/title-34/subtitle-B/chapter-III/part-300/subpart-A/subject-group-ECFR0ec59c730ac278e/section-300.8

Fry v. Napoleon Comm. Schs., 580 U.S. 154 (2017).

I.K. v. Manheim Twp. Sch. Dist., 2023 WL 3477830 (2023).

Perez v. Sturgis Pub. Sch., 143 S. Ct. 859 (2023).

U.S. Department of Education. (2024, February 20). U.S. Department of Education’s Office for Civil Rights releases new resources on students with disabilities. ed.gov/news/press-releases/us-department-educations-office-civil-rights-releases-new-resources-students-disabilities

U.S. Department of Education. (2023, July 18). Frequently asked questions about Section 504 and the education of children with disabilities. ed.gov/about/offices/list/ocr/504faq.html

Zirkel, P., & Gullo, G. L. (2024). State rates of § 504-only students in K–12 public schools: The latest update. West’s Education Law Reporter, 417, 929–934.