The purpose of this article is not to incite school districts to challenge the United States Department of Education, Office for Civil Rights (OCR), but rather to focus the Special Education spotlight on the underpinnings of OCR’s Section 504 regulations.  By doing so, it may spark some discussion of whether OCR’s regulations are appropriately based on statutory law.

If your school district is ordered by OCR to provide a “free appropriate public education” (FAPE) to a student with a Section 504 Plan who is not otherwise IDEA eligible, how solid is the ground upon which OCR’s Order rests?  OCR’s longstanding regulation applies a “reasonable accommodation” standard to employers, higher education, and other recipients of federal assistance, while applying a different standard – FAPE – to K-12 public education.  However, can a persuasive argument based on the statute and case law be made to cause a Court to question the validity of OCR’s regulation?

OCR’s regulation dates back to 1977.  It states that “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….”  On its face, the regulation appears to be a reasonable exercise of OCR’s authority.  Several legal principles support its validity.  For example, the law is well settled that administrative agencies, such as OCR, have the authority to promulgate regulations.  To be valid, OCR’s regulations may not be arbitrary, capricious, reflect an abuse of discretion nor exceed their statutory authority, jurisdiction or limitations.  Also, in support of the regulation’s validity, an administrative agency’s consistent longstanding interpretation of a statute under which it operates is entitled to considerable weight.  However, this deference is not unlimited.  It remains the obligation of the courts to honor the clear meaning of a statute as revealed by its language, purpose and history.  Regarding OCR’s regulation on this issue, a close examination of the statute and case law fails to lend support to OCR’s contention that there are two legal standards – FAPE for K-12 schools and reasonable accommodations for all other recipients of federal funds.

Is it a foregone conclusion that questioning the 1977 OCR regulation will fall on deaf ears?  To answer that question, we must first look to the statutory language itself.  Section 504 reads as follows:

“No otherwise qualified individual with a disability in the United States, … shall, solely by reason of his or her disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance…”

Section 504 makes no mention of an entitlement to FAPE.  Section 504 contains no language imposing a separate higher standard on K-12 public schools.  Rather, as would be expected in a statute addressing discrimination, Section 504 applies uniformly to all recipients of federal funds.  However, through its regulation, OCR apparently turns its back on the statute’s intent to establish uniform treatment of those with disabilities and imposes a FAPE requirement on federally funded K-12 programs.

This statutory argument does not stand alone.  There is a long line of court decisions stretching back to the 1979 U.S. Supreme Court decision in Southeastern Community College v. Davis.  In Davis, the Supreme Court described the limits on the authority of a federal agency to impose affirmative obligations in the context of Section 504.  As previously noted, the statute itself contains no language imposing a separate higher standard on K-12 public schools.  Rather, the statutory language applies uniformly to all recipients of federal funds.  In Davis, the Supreme Court implicitly held that Section 504 does not impose “…an affirmative obligation on all recipients of federal funds….”  Courts since Davis have consistently interpreted Section 504 to impose a uniform standard that requires reasonable accommodation of the needs of disabled individuals.  Just as consistently, Courts have rejected the notion that Section 504 imposes affirmative obligations on recipients of federal funds.  Isn’t OCR’s requirement that K-12 institutions provide FAPE just such an affirmative obligation?  If so, it follows that OCR should not be able to impose an affirmative FAPE obligation on one class of recipients of federal funds (i.e. K-12 public schools).  Regardless of Davis and its progeny, OCR has repeatedly taken the position that a reasonable accommodation standard applies to all agencies except K-12 school districts and a FAPE standard applies only to K-12 school districts.

By rejecting a reasonable accommodation standard for K-12 school districts, OCR has positioned itself directly contrary to the holding in Davis that substantial modifications to programs are not required.  Has OCR gone too far?  Is the creation of such an affirmative obligation by OCR beyond OCR’s legal authority?  There is no indication by the Davis Court that its opinion was limited to only a small class of agencies receiving federal funds,  Regardless, OCR has contended for many years that Davis should be limited to higher education and that FAPE is required under Section 504.

By focusing the Special Education Spotlight on OCR’s Section 504 regulations, legitimate questions come to light.  However, successfully changing a decades old regulation that has been consistently implemented by OCR will not happen overnight.  Such a change will, in all likelihood, only be considered by OCR under the right circumstances.  The situation must be carefully chosen.  It should be a situation in which OCR plans to order a school district to provide special education services or a residential placement for a Section 504 student who is not IDEA eligible.  It is evident that until the regulation changes, OCR will continue to apply a FAPE standard under Section 504.
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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.