Federal and state law requires schools to provide FAPE and accommodations to every child that needs them. As a teacher, I worked to fulfill such students’ IEPs and 504 plans. As an education attorney I hold schools accountable, either for providing what the child needs to succeed within the district, or for paying for the cost to attend a school outside of the district.
For parents, the process of accessing accommodations or interventions can seem like wandering through a complicated maze. Meetings and forms follow one after the other. Developing the correct plan seems to depend on finding the right test and doing the right evaluation. Administrators know the rules and understand the procedures. Parents rarely do. Some hire professional advocates to help navigate this process. While knowledgeable, advocates have limited authority. As your education attorney, my involvement carries both expertise and legal weight, helping you get the education, services and accommodations your child needs, in the most effective and timely way.
When we meet, I will listen with a teacher and attorney’s ear for the evidence to establish whether your child’s plan has met legal standards. Unlike an advocate, an education attorney can remedy failure through mediation, a hearing or legal action.
A student’s 504 plan should give them the same education their classmates get. Schools must write plans so that every teacher and every official in the school knows what they must do to make that happen. When they don’t follow the plan and don’t provide the 504 accommodations written into the plan, an education attorney will advise their clients that the law gives them ways to correct past mistakes and prevent future ones.
Section 504 is intended to stop schools from offering disabled students less. It tells schools to write plans tailored to each student. Each plan must offer the student the mix of regular and special education instruction that he or she needs. It must put in place the aids and services — wheelchair ramps, for example — the student needs to get to that instruction. It must offer the student the same chance as everyone else to take part in sports and extracurricular activities. And even though the plan itself does not say as much, the school must keep the student free from being bullied or harassed for their disability.
The law leaves open the details of instruction. It states simply that the disabled must receive an education as ‘adequate’ as everyone else’s. It does not define the meaning of ‘adequate’.
But because to get a 504 plan the student must have a physical or mental impairment, the plan will offer services besides instruction to overcome the impairment. For a student with ADHD the plan might call for the teacher to check with the student often to make sure they are following along, or help them keep track of homework assignments, or give them extra time on tests. For a student with anxiety about crowds the plan could allow them to leave class early. For a student whose medical condition keeps them from getting to school on time some mornings the plan could provide that on those days the school will not mark them absent or tardy.
Some school officials mistakenly think good grades prove a student has no disability and needs no plan. The law states that to qualify for 504 accommodations a student must have a disability that substantially limits a ‘major life activity’. People assume that if a student is passing all their courses, their disability is not limiting the ‘major life activity’ of learning. But it takes concentration to get good grades, and concentration itself can count as a ‘major life activity’. A student with ADHD, learning disabilities or dyslexia may have substantial limits on their ability to concentrate. To pass their classes they may have to spend many more hours studying than other students do. Quiet and cooperative students have even more difficulty convincing schools they have a limiting inability to concentrate. A correct plan will help the student overcome their inability to concentrate.
Even after they find that a student qualifies for 504 accommodations, officials often fail to pay attention to details in the 504 plan. Parents complain that nobody at their child’s school keeps them informed of what teachers are doing to follow the plan. They complain that teachers either don’t follow the plan or persist in making the same mistakes over and over. For example, students whose plan allows them to come to school late may find the school threatening to withhold credit because the teacher in their first-period class, forgetting the plan, continually marks them tardy or absent.
When people ignore the 504 plan in ways like this, parents can take action. First they must give the school district a chance to end the discrimination and make sure it does not happen again. If the school does not respond, the family then may file a complaint with the United States Department of Education’s Office of Civil Rights. If OCR decides to investigate, it has the power to order the school to take remedial action. It cannot award compensation. The family may also file a complaint with the State of Connecticut’s Commission on Human Rights and Opportunities. After a hearing, the CHRO may award minimal damages to the student. The last choice is to hire an education attorney and bring an action in state or federal court against officials for violating the civil rights of a person with a disability. These courts have the authority to award sizeable money damages.
And education attorney can hold school officials accountable in court only if they acted intentionally. This means they cannot be pursued for misunderstanding their responsibilities or for incorrectly following the 504 plan. Judges hesitate to second-guess school administrators’ ‘professional judgment’. They avoid telling them what they should have done when — in theory — only a trained professional could have known from the facts what was the right thing to do.
What judges will hold officials liable for are acts of deliberate misconduct. ‘Deliberate’ in the normal sense of the word rarely happens. Teachers and principals seldom intentionally single out disabled students for different treatment. ‘Deliberate’ more often means that officials knew that their behavior would hurt a student and yet did not change it. They stood “indifferent” to their behavior’s impact. An example of this would be an official that was told more than once that a certain student’s 504 plan was not helping. If the student failed classes while the official took no action, the family could hold the official liable for deliberate discrimination. Another example could be officials that knew that the 504 plan was not protecting the student from being bullied for their disability, yet they persisted in keeping the plan in effect. In that case they could be liable for the harassment’s effects.