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Delaware Assistive Technology Initiative

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Vol. 10 No. 2 Spring 2002

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AT in Schools: Students’ Rights to Assistive Technology Under IDEA and Section 504

Eliza Patten, Disabilities Law Program

Assistive Technology (AT) offers promise to many students with disabilities in their efforts to benefit from educational programs. Individual rights to AT devices and services for students derive from several major federal laws including the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. The Individuals with Disabilities Education Act (IDEA) is probably the most important tool for students who need AT to maximize their educational opportunity—it is the only law tailored specifically to education.

Part B of the IDEA guarantees that all students aged 3-21 with disabilities have the right to a “free and public education” (FAPE). If a student has a disability which meets the definition of one of several disabilities enumerated in the statute, and as a result needs special education and related services, that student is eligible to have those services provided at no cost to herself or her parents. Schools are under an affirmative obligation to identify and evaluate all children with disabilities within their jurisdiction. The heart and soul of the IDEA is the written individualized education program (IEP), which is developed by school officials in conjunction—“as equal partners”—with the parents of the child with a disability and, where appropriate, with the child. The required content of an IEP is specified by statute, including the nature of the student’s educational needs, the services to be provided, and specific goals for the student. Schools must ensure that students receive their education in the least restrictive environment (LRE), and that they are removed from regular education classes only when they cannot be educated successfully in the regular education classroom even with supplementary aids and services. AT services and devices are included in this definition, and these supports are to be provided in other settings, such as extracurricular or extended school year settings, in addition to the classroom.

Because there is no federally-approved list of AT devices and services covered by the IDEA, AT can be as rudimentary as a calculator or as sophisticated as an auditory FM trainer for a student who is hearing impaired. The legislative history adding AT to the IDEA stresses how these devices and services can assist a student to be educated in the least restrictive, or most integrated, environment.

The AT selected by the school must be appropriate to the needs of the student. Parents have a right to a formal, impartial review of the school’s recommendations. Parents also have a right to an independent AT evaluation, at school expense, if the parent disagrees with the evaluation obtained by the school, and the school fails to show that its evaluations were appropriate.

Section 504 of the Rehabilitation Act of 1973, which served as the foundation for the Americans with Disabilities Act (ADA), prohibits discrimination on the basis of disability. Because the ADA does not provide any rights to students with disabilities beyond those which are included in Section 504, this article will not discuss the ADA. Section 504 casts a much broader net than the IDEA, prohibiting discrimination in any program or activity receiving federal financial assistance and any programs run by the U.S. government. Thus, because all public schools and many private schools receive federal funding, Section 504 becomes an important enforcement tool for protecting the rights of students with disabilities. However, unlike the IDEA, there is no separate funding available under Section 504 to help schools comply with its requirements.

The definition of disability under Section 504 is much broader than the eligibility requirements of the IDEA. The statute defines an “individual with a disability” as:

Any person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such impairment.

Students with disabilities are eligible even if they do not need any special education services. Thus, for example, students with disabilities who do not meet the criteria under the IDEA but who still need some specialized assistance or modifications in the regular education program, including AT, are covered by Section 504.

If a school determines that a student with a disability is not eligible for services under the IDEA, it must have a process in place to determine whether the student is covered by Section 504. Although the U.S. Supreme Court has ruled, in Southeastern Commununity College v. Davis (1979), that Section 504 does not require a recipient to undertake substantial revision of its program—holding, in effect, that the prohibition on discrimination is not a mandate for affirmative action—the Court did leave open the possibility that in certain circumstances a recipient of federal funds may be obligated to take affirmative steps to avoid discriminatory treatment, provided that those steps do not impose undue financial and administrative burdens. A key distinction under Section 504 is that a school district is not required to make every part of its buildings fully accessible, but rather that it is responsible for ensuring that all of its programs are accessible to students with disabilities. This program accessibility mandate additionally requires that the school give priority to those methods that enable students with disabilities to participate “in the most integrated setting appropriate.”

Section 504, like the IDEA, guarantees that students with disabilities receive a free and public education, but unlike the IDEA, it defines a FAPE as regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of nondisabled students are met. Like the IDEA, Section 504 favors educating students in the regular education setting unless the school demonstrates that, even with the use of supplementary aids and services, this cannot be achieved. Section 504 requires schools to develop a procedure to determine students’ educational needs. These requirements are similar, but not identical, to the IDEA requirements. Prior to providing services, the student must be provided with a comprehensive, individualized evaluation, and once the student begins receiving services, there must be regular reevaluations. The student’s needs must be specifically identified in writing, but there is no requirement that the school develop an IEP for the student.

If a student with a disability, who is not receiving special education services, needs an AT device to fully participate in a school program, Section 504 may require that the school provide the device as well as any training needed to effectively use it. The following is an illustrative, though not exhaustive, list of AT devices which could be funded by schools under Section 504, drawn from rulings by the U.S. Department of Education’s Office for Civil Rights (OCR):

• Modification and adaptation of a computer to enable a student with quadriplegia to use the computer without assistance. Colton Joint (CA) Unified School District, (OCR 4/7/95).

• Classroom hearing assistive device and reduction of noise levels for a student with a hearing impairment. Cobb County (GA) School District, 27 IDELR 229 (OCR 5/22/97).

• Use of a computer for a student with a mobility impairment to access the library. However, the school was not required to install an elevator to make the library accessible. Newton (MA) Public Schools, 27 IDELR 233 (OCR 5/30/97).

• Use of a closed caption decoder for a student with a hearing impairment while viewing videotapes. Chapel Hill-Carrboro (NC) City Schools, 27 IDELR 606 (OCR 1997).

• Use of tutorial software and a laptop for a student with narcolepsy. Bacon County (GA) School District, 29 IDELR 78 (OCR 3/13/98).

• Use of an Arkenstone scanner to scan and read text for a learning disabled student. However, OCR determined that there was no violation of Section 504 when the student was not allowed to use the device for a State reading exam. Alabama Department of Education, 29 IDELR 249 (OCR 4/10/98).

The OCR accepts complaints concerning individual students or groups of students where allegations concern: procedural violations; lack of accessibility; failure to provide agreed upon services; or discrimination. However, individuals who seek to challenge the decision of the Section 504 Team on such matters as the accommodations or services to be provided must appeal to the due process hearing provided for by statute.

Thus, Section 504 offers students with disabilities who are not eligible for special education services under the IDEA opportunities to receive the AT supports which may allow them to more fully meet their potential. In addition, because technology is always changing, the AT devices students may benefit from are often devices which did not exist years or even months earlier. The law recognizes the dynamic nature of technology by not restricting the list of “approved” AT devices. Thus, both the IDEA and Section 504 provide important funding sources and enforcement tools to increase the likelihood that the educational needs of students with disabilities will be met.

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