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The Rehabilitation Act of 1973 (Section 504) as Applied to Private Schools

Section 504 of the Rehabilitation Act of 1973 prohibits the recipients of federal funding from discriminating against an individual because of a disability. 29 U.S.C. § 794. The statute provides:

"No otherwise qualified individual with a disability. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . ." 29 U.S.C. § 794(a).

Section 504 specifically applies to private schools that receive federal financial assistance. 29 U.S.C. § 794(b)(3)(A). Section 504 is an anti-discrimination statute. It prohibits private schools from discriminating against students because of a student's disability. Section 504 is not, however, an affirmative action statute. It does not require private schools to substantially modify their programs to provide access to students with disabilities.

Q. What constitutes a disability?

A. Under Section 504, a student is deemed to have a disability if the student 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. 34 C.F.R. § 104.3. Physical or mental impairment is defined very broadly and includes virtually any substantially limiting physical or mental disorder. 34 C.F.R. § 104.3(i). Major life activity is defined to include, without limitation, functions such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id.

Q. To whom does Section 504 apply?

A. Section 504 replies to all entities including private sectarian as well as non-sectarian schools that receive, directly or indirectly, federal funds. It does not, however, apply to entities that indirectly receive merely the benefits of federal funding, but not the funding itself.

Private schools may receive Federal funding through may different avenues, including funding for school lunch programs, anti-drug programs, programs designed for at-risk students, educational reform programs, programs designed to enable student to meet national education goals, technology grants, government contracts, government loans, etc. Further, Section 504 applies even if the private school receives the federal funding indirectly. For example, if the federal government provides a grant to a non-profit entity organized to promote education, student health, or a similar purpose, which entity reallocates some of the funding to a private school, the private school is "a recipient of federal funds" under § 504. Dupre v. The Roman Catholic School of the Diocese of Houma-Thibodeaux, 31 IDELR 129 (U.S.D.C. EDLa 9/2/99).

Upon receipt of federal funding, the recipient must comply with Section 504 with respect to all of its services and programs, even though the federal funding received is limited to a single program.

Q. Does Section 504 obligate private schools to enroll students with disabilities?

A. Yes, but only if the student is otherwise qualified to participate in the program, without or without minor adjustments. 34 C.F.R. § 104.39. Section 504 does not require a private school to modify its essential enrollment criteria. If, however, the student could meet the program criteria with minor adjustments, the private school must make such adjustments. For example, if a student, because of his or her disability, needs additional time to complete a school entrance exam, this accommodation should be provided. As another example, a private school generally would be required to adjust a "no animals on campus" policy to accommodate a blind student or certain seizure disorder students who need service dogs.

The language of Section 504 applicable to private schools differs from that used in the Americans With Disabilities Act. Section 504 provides that private schools must merely provide "minor adjustments" to assist students with disabilities 34 C.F.R. § 104.39(a). The ADA, by comparison, requires the provision of "reasonable accommodations." 34 C.F.R. § 104.12 (requiring reasonable accommodation for employees with disabilities). There is very little case law construing the distinction between a "minor adjustment" and "reasonable accommodation", however it seems logical that "minor adjustment" is a lesser standard. Hunt v. St. Peter's School, 963 F.Supp. 843 (W.D. Mo. 1997); but see Ireland v. Kansas Dist. of Wesleyan Church, 21 IDELR 712 (D. Kan 1994).

What constitutes a minor adjustment sufficient to satisfy Section 504 is a fact intensive inquiry. The factors to be considered include nature of the program for which the accommodation is sought (for example, it is doubtful that a court would require a private school to lower its academic criteria), the administrative burden of the requested adjustment (i.e. minimal extra time to complete school work, class seating preferences, use of a tape recorder, larger print, lines paper, oral exams, an additional set of textbooks for students with physical strength related disabilities, and the like typically should be provided, whereas tutoring, a complete excusal from required work, likely are not); the expense of the requested adjustment, and related factors.

Q. Are the Section 504 rules applicable to private school students different than those which are applicable to public schools?

A. Yes. The requirements imposed upon private schools are relatively minimal as compared to public schools. The Section 504 obligations imposed on public schools are, for the most part, modeled after the IDEA, and include an obligation to identify and evaluate student's eligible for special education services, the provision of a free appropriate education, the obligation to educate the child in the least restrictive environment, various procedural due process protections, and many of the other components of the IDEA. Conversely, private schools receiving federal funds are obligated merely comply with the least restrictive environment mandate and comparable facilities requirement, 34 C.F.R. § 104.34, provide an equal opportunity to participate in extracurricular activities, 34 C.F.R. § 104.37, and provide minor adjustments to accommodate students with disabilities. 34 C.F.R. § 104.39.

Q. Are there any special rules applicable to private schools that operate special education programs.

A. Yes, private schools that operate special education programs are subject to some, but not all, of the Section 504 requirements that follow the IDEA model. Private schools that operate special education programs must evaluate students, who because of a disability, need or are believed to need special education or related services. The evaluation process is described in 34 C.F.R. § 104.35. In addition, private schools operating special education programs are required to provide parents with certain procedural due process safeguards, including a right to examine student records, and an impartial hearing process for the resolution of disputes regarding the provision of special education and related services. 34 C.F.R. § 104.36.

Q. May a private school increase its tuition or program costs for disabled students?

A. Yes, a private school may seek reimbursement if the provision of services to the disabled student results in a "substantial increase in cost" to the private school. 34 C.F.R. § 104.39(b). As a general rule, a private school should not charge additional costs to students with disabilities. If, however, the provision of educational services to a student with a disability results in a substantial increase in the cost of the program, the private school may seek reimbursement. There is little, if any, authority delineating what constitutes "a substantial cost."

Q. Are there any special rules that apply to private school discipline of a student with disabilities.

A. Generally, no. The objective of Section 504 is to ensure that students with disabilities are treated the same as their non-disabled peers. As such, the same disciplinary rules should apply. There may, however, be situations where a private school, as a minor adjustment to its program, must take a disability into account when imposing disciplinary measures. As a general rule of thumb, a student with a disability should not be disciplined for acting in conformity with his or her disability. For example, a private school should not discipline a hearing impaired student, who because of his disability, has difficulty keeping his voice to a whisper in the school library. Similarly, a private school should not discipline a student with a disability that impairs the student's mobility because the student has difficulty traversing the school hallways between classes, and is often late for class. In such circumstances, the private school must make minor adjustments to its general school rules to accommodate the student.

Q. Is drug and alcohol addiction a disability under Section 504?

A. Yes. Section 504, like the Americans With Disabilities Act, treats alcohol and drug addiction as a disability if the addiction substantially impacts a major life activity (presumably learning). A student who is drug addicted or an alcoholic may not be denied access to a private school or its programs because of the disability. This does not mean, however, that the student is excused from compliance with school rules. If a school has disciplinary rules that drug or alcohol use is grounds for discipline, or a denial of participation in extracurricular activities for students who use drugs or alcohol, such rules apply equally to alcoholic and drug addicted students. Similarly, if a students alcohol or drug use causes the student to fail to comply with school requirements such as completing school work, attendance, etc., the disciplinary rules applicable to such infractions apply equally to such students.

The Americans With Disabilities Act provides some guidance as to how private schools should address alcoholic and drug addicted students. Under the ADA, alcoholics and drug addicted persons are deemed to be persons with disabilities, which must be afforded reasonable accommodations. The ADA, however, excludes current users from its protection. Stated otherwise, the ADA prohibits discriminatory treatment of such persons by virtue of their history of alcohol or drug addiction, but does not prohibit the imposition of adverse consequences for a current use of alcohol or drugs.

Q. Does Section 504 apply to students with ADHD?

A. Sometimes yes, sometimes no, depending upon whether the students ADHD substantially limits a major life activity (typically, the major life activity of learning).

If a student with ADHD is succeeding in school, the student's ADHD is not substantially effecting the major life activity of learning, and thus the student generally would not be considered a student with a disability. To determine whether the student's ADHD substantially limits his or her learning, the school should consider the impact of the disorder on the student's expected performance levels. The fact that a student is receiving passing grades does not necessarily mean that the ADHD is not substantially limiting the student's learning, if the disorder results in a gifted child receiving C's, rather than A's and B's. By the same token, the fact that a ADHD student is receiving all F's would not necessary indicate that the student's disorder is the cause of the poor grades. It may be that the student is not bright, has a poor attitude, or for some other reason unrelated to the ADHD is not performing well at school.

Q. Whose responsibility is it to determine if a student has a disability and is protected under Section 504?

A. For private schools that do not offer special education programs, arguably there is no affirmative obligation to identify students with disabilities. Section 504 is an anti-discrimination lawsuit. If a private school does not know, or has no reason to know, that a student has a disability, the private school cannot be said to have discriminated against the student on the basis of a disability that the school didn't even know existed.

Private schools that operate special education programs have an affirmative obligation to evaluate students who may be in need of special education or related services. 34 C.F.R. § 104.35.

It is recommended that all private schools, however, develop procedures to identify students with disabilities, and to determine whether such disabilities are impeding a student's educational progress. It is likely that the first step of such procedures probably occurs as a matter of course in most schools. Ordinarily, a teacher or other directly involved school staff identify students who are having difficulty in the classroom, and adopt strategies, either individually, or in consultation with school administrators, school counselors, or others, to try to assist such students. This process of developing educational related strategies, in many cases, will provide the "minor adjustments" sufficient to satisfy Section 504.

If such strategies are ineffective, the private school should develop a team process to discuss other alternative strategies. It is recommended that the team process include the parent(s), the child's teacher, and persons with expertise in the area of the child's disability. The team approach offers a broader perspective that will hopefully allow for the development and implementation of innovative strategies to allow the child to succeed. The team can also identify evaluations and testing to identify the student's need areas and to assist in the development of appropriate strategies to address such needs.


Private schools, like all other businesses that serve the public, must comply with Title III of the Americans With Disabilities Act. Title III addresses primarily the physical architecture of the public school facility and grounds and requires that the facilities be accessible to persons with disabilities.

In addition, Title I of the Americans With Disabilities Act, § 504, and the New Mexico Human Rights Act prohibit private schools from discriminating against employees or prospective employees with disabilities, if such persons, with or without reasonable accommodations, are otherwise qualified for the position.

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