Letter to Zirkel
From Norma Cantu, US Department of Education
Office for Civil Rights, August 20, 1993
This is
in response to your letter of June 28, 1993, in which you expressed concern
regarding the policy of the Office for Civil Rights (OCR) with regard to school
districts' substantive obligations under Section 504 of the Rehabilitation Act
of 1973 (Section 504). The questions you pose focus on the Department of
Education (Department) regulation implementing Section 504, specifically 34
C.F.R. 104.33(a):
(a) General.
A recipient that operates a public elementary or secondary education program
shall provide a free appropriate public education to each qualified handicapped
person who is in the recipient' s jurisdiction, regardless of the nature or
severity of the person's handicap.
The key
question in your letter is whether OCR reads into that Section 504 regulatory
requirement for a free appropriate public education (FAPE) a "reasonable
accommodation" standard, or other similar limitation. The clear and
unequivocal answer to that is no. Section 104.33(a) guarantees all qualified
individuals with disabilities FAPE, which consists of regular or special
education and related aids and services that are de signed to meet the
individual education needs of qualified persons with disabilities as adequately
as the individual education needs of other persons are met and that are
designed and delivered in accordance with the Department's regulation. 34
C.F.R. 104.33(b)(1).
The
Section 504 regulation was originally promulgated by the Department of Health,
Education, and Welfare (HEW) and received thorough public scrutiny, with
opportunities for written comment as well as for participation in 22 public
meetings, prior to publication in the Federal Register on May 4, 1977. The regulation
became effective on June 3, 1977, following congressional review that failed to
elicit any objections. The regulation was adopted without change by the newly
created Department of Education end published in the Federal Register on May 9,
1980. Thus, I believe that the FAPE requirement in the Section 504 regulation
does reflect congressional intent.
Since
that time there have been no actions by the Congress, the Federal courts, or
the agencies and administrative tribunals of the executive branch that would
require OCR to modify 104.33, or its interpretation thereof, to allow for some
limitation of the FAPE guarantee.
The
regulation establishes different compliance standards for different educational
contexts. A reasonable accommodation limitation on the responsibilities of
recipients is contained in Subpart B of the regulation, which covers
employment. See 34 C.F.R. 104.12.
Subpart E, which covers post-secondary and vocational education, contains a
similar limitation on the recipient's obligation to modify its academic
requirements to ensure that they do not discriminate or have the effect of
discriminating on the basis of disability. If a recipient can demonstrate that
an academic requirement is essential to the program of instruction being pursued
by the student with a disability or to a directly related licensing
requirement, failure to modify the requirement will not be regarded as
discriminatory. See 34 C.F.R. 104.44. Such limitations are not contained in
Subpart D, covering elementary and secondary education. We conclude therefore
that the regulation writers intended to create a different standard for
elementary and secondary students than for employees or
post-secondary/vocational students.
You have
cited two particular Supreme Court cases as supporting your position that
Section 504 was intended to re quire only reasonable accommodation for
elementary and secondary students with disabilities. OCR's position is that
104.33 is not in any way inconsistent with the U.S. Supreme Court's interpretations
of Section 504 and its implementing regulation. I will address each of these
cases in mm in order to explain their inapplicability to the FAPE requirement.
In Southeastern
Community College v. Davis, 442 U.S. 397(1979), the Court considered the appeal
of Frances Davis, a woman with a hearing impairment, who sought admission to
the associate degree nursing program at Southeastern Community College. The
court found that the college's refusal to admit her was not a violation of
Section 504. In effect, the Court found that Davis was not a qualified handicapped
person as defined in 45 C.F.R. 84.3(k)(3), the Section 504 implementing
regulation of the former Department of Health, Education, and Welfare. This
regulation is identical to 34 C.F.R. 104.3(k)(3) in the Department's
implementing regulation enforced by OCR. This section of the regulation states
that with respect to post-secondary and vocational education services, a
qualified handicapped person is a handicapped person who meets the academic and
technical standards required for admission to or participation in the
recipient's education program or activity. Davis was not a qualified individual
with a disability because she did not meet the "technical standards"
required for admission to the college's program. The balance of the court's
opinion was devoted to determining that the physical qualification of hearing
was a necessary "technical standard."
Thus, the
Court was addressing modifications unrelated to the part of the educational
process covered by 34 C.F.R. 104.33. The children covered by 34 C.F.R. 104.33
have already been determined to be qualified handicapped persons according to
34 C.F.R. 104.3(k)(2), which sets forth age-related qualifications. To apply Davis
appropriately in this context, the question would have to be whether an
elementary or secondary school should have to modify the age ranges that an
individual must meet in order to qualify for their benefits and services and,
if the school refuses to do so, whether that refusal is justified.
Even
assuming Davis could be applied to issues other than qualification
standards, the Court is not saying, as you imply in your letter, that any
substantial accommodation "would constitute an unauthorized extension of
the obligations imposed by [Section 504]." What the Court actually said is
that [i]f [the Section 504] regulations were to
require substantial adjustments in existing programs beyond those necessary
to eliminate discrimination against otherwise qualified individuals, they
would do more than clarify the meaning of 504. Instead they would constitute an
unauthorized extension of the obligations imposed by [Section 504].
442 U.S. at 410 (emphasis added). This statement has no impact on
34 C.F.R. 104.33(a) because that section does not require changes beyond those
necessary to eliminate discrimination. If a school district is meeting the
needs of children without disabilities to a greater extent than it is meeting
the needs of children with disabilities, discrimination is occurring. By
meeting the educational needs of children with disabilities as adequately as it
meets the needs of other children, the school district is eliminating
discrimination, and even substantial modifications required to bring about this
result are not suspect under the Davis decision. 34 C.F.R. 104.4,
104.33(b).
In Alexander
v. Choate, 469 U.S. 287 (1985), the Court relied in part on its opinion in Davis
to find that the reduction of annual inpatient hospital days that the state
medicaid agency would pay for on behalf of all medicaid recipients was not
discriminatory. The medicaid recipients who had challenged the cutback had
argued that individuals with disabilities were disproportionately affected by
the agency action. Setting aside the clear distinctions between the health care
and the education contexts, this decision still does not support limitations on
the provision of FAPE as mandated by 34 C.F.R. 104.33(a).
The Court
cites its Davis decision as support for the principle that "[s]uch a
'fundamental alteration in the nature of the program' was far more than the
reasonable modifications the statute or the regulations required." Alexander,
469 U.S. at 300, quoting Davis, 442 U.S. at 410. Section 504 of the
statute does not, despite the statements of the Choate Court, speak to what
modifications are or are not necessary. The regulation originally referred to
by the Davis Court and subsequently mentioned by the Choate Court
is apparently 45 C.F.R. 84.44, covering postsecondary and vocational education,
which states that a recipient shall modify its academic requirements as
necessary to ensure that they do not discriminate or have the effect of
discriminating on the basis of disability---unless the recipient can
demonstrate that such requirements are essential to the program of instruction
or to any directly related licensing requirement. This regulation is identical
to 34 C.F.R. 104.44, enforced by OCR.
The Choate
Court, in effect, interprets the mandate of Section 504 in a manner that
supports the language of the postsecondary/vocational education portion of the
regulation: "fundamental" alterations referred to by the Court are
those defined in 34 C.F.R. 104.44 as ones where the recipient can demonstrate
that modification would affect the essential nature of the program or licensing
requirements; "reasonable" modifications are those that would
coincide with the modifications mandated by 34 CF.R. 104.44, meaning those that
do not affect the essential nature of a program and that must be made to eliminate
discrimination. The Court did not make any pronouncement regarding the degree
of modification that must he made to a recipient's program where modification
is not already provided for in the regulation. Since 34 C.F.R. 104.33 makes no
provision for modification, as 34 C.F.R. 104.44 does, the Court's interpretation of degrees of
modification is not applicable to 104.33. In fact, when the Court cites parts
of the Section 504 regulation that support "reasonable adjustments in the
nature of the benefit offered," it does not include any provisions of the
regulation relating to a free appropriate public elementary or secondary
education.
The Davis
and Choate Courts' findings regarding whether or not only reasonable
modifications must be made are not in opposition to the Department's
interpretation of Section 504; these findings do not relate to provisions in
the regulation covering elementary and secondary education. I am sure that you
are aware of the many significant differences between postsecondary/vocational
and elementary/secondary education, beginning with the voluntary nature of the
former. States, on the other hand, require elementary and secondary education
for children between specified ages, and these children, whether or not they
have disabilities, must attend.
The lower
court cases that you cite do not require, or even suggest, any need for
alteration of the FAPE regulation. Those cases that determine what a school
district must provide to an elementary or secondary student with a disability
under Section 504 restate the Davis interpretation: Section 504 is a
statute that prohibits discrimination, rather than requiring affirmative action
to overcome a student's disability. If particular educational services
requested by the plaintiffs in these cases are denied by the courts, it is
almost uniformly because the courts found that discrimination was not occuring;
that is, those services requested were not necessary to prevent or eliminate
discrimination because the services currently being provided were not
discriminatory. This coincides with OCR's interpretation set forth above that
the FAPE regulation requires school districts to meet the individual needs of
all students to the same extent, though not necessarily by providing the
same programs or services. Most important, though, is the fact that none of the
cases cited calls into question the legality of the FAPE regulation.
Turning
to your final question, OCR has been designated as the agency that investigates
complaints under Title II of the Americans with Disabilities Act of 1991 (Title
II) against public elementary and secondary schools, and its enforcement of
Title II is guided by the Department of Justice's implementing regulation. 28
C.F.R. pt. 35. Title II's relationship to Section 504 is covered by 28 C.F.R.
35.103 of the regulation. That section of the regulation states that Title II
shall not be construed to apply a lesser standard than the standards applied
under Title V of the Rehabilitation Act of 1973 (which includes Section 504) or
other regulations issued by Federal agencies pursuant to Title V.
"[C]ongress did not intend to displace any of the rights or remedies
provided by the other Federal laws (including Section 504) ... that provide
greater or equal protection to individuals with disabilities." 28 C.F.R. 35.103(b) and 28 C.F.R. ch. 1, pt. 35,
app. A., at 430 (1992).
Title II
has been interpreted to adopt the standards of Section 504 in areas where Title
II has not adopted a different standard. Title II does not specifically address
discrimination in public elementary and secondary education programs.
Accordingly, OCR has the authority to reference 34 C.F.R. 104.33 standards when
interpreting Title II's general discrimination provisions. Memorandum from
Michael L. Williams, Assistant Secretary for Civil Rights, Department of
Education, to OCR Senior Staff, Subject: Substantive Guidance Comparing Title
II of the Americans with Disabilities Act of 1990 and Section 504 of the
Rehabilitation Act of 1973, 19 IDELR 859, 860 (November 19, 1992).
According
to the Department of Justice's comment on its Title II regulation, 28 C.F.R. 35.130(b)(7) "is a specific
application of the requirement under the general prohibitions of discrimination
that public entities make reasonable modifications in policies, practices, or
procedures where necessary to avoid discrimination on the basis of disability....
[T]he House Judiciary Committee Report directs the Attorney General to include
those specific requirements in the title II regulation the extent they do
not conflict with the regulations implementing section 504." 28 C.F.R. 130(b)(7) and 28 C.F.R. ch. 1, pt.
35, app. A., at 440 (1992). Since the Department has developed the specific
FAPE standard for compliance for elementary and secondary schools under Section
504, the Title II regulation in this instance is not intended to be applied to
weaken the existing Section 504 standards.
OCR has
and continues to enforce the Section 504 regulation as duly promulgated and
reflective of congressional intent and the courts have not found otherwise. One
of OCR's missions is to promote educational equity for all children. Defending
the civil rights of children with disabilities as intended by Congress can
never impair our integrity or our impact -- but will only bring greater
credibility to our efforts on behalf of all those served by this country's
public schools.
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