HAS SECTION 54 BEEN OVERLOOKED ARTICLE

Has Section 504 Been Overlooked?

By Lawrence J. Altman

Originally published in Rethinking Behavior Spring 2021, Volume 4 , Issue 3

Unsplash from Sukoff Joshua by Photo

These are not “normal” times. And we are just beginning to realize their impact. COVID-19 already has and will continue to negativelyimpactourstudents.MSNBC,CNN,FOX,andother news outlets have presented interviews with mental healthexpertsdiscussingtheimpactthispandemichas had and will continue to have upon students. What’s more, on May 8, 2020, the American Academy of Pediatrics (AAP) published an article stating the need for schools to comprehensively plan for their re-openings. The AAP stated, when students return to school, staff must expect that many will exhibit behaviors and mental health problems not previously seen before educationwasdisrupted.Schoolsmustbeprepared for theneed to assessthemental health of all students upon their return to school and provide mental health servicesat significantlyincreased levels. Unfortunately, this pandemic has also brought additional trauma and emotional harm to our students of Asian descent and their families. Statements made by some referring to COVID-19 as the “Chinese virus” have resulted in harassment and threats to Asian Americans. News reports from around the country have reported incidents of harassment and physical attacks upon our citizens of Asian descent. Compounding this, the ugly head of racism has again emerged with the killing of George Floyd by a white police officer. The impact of this traumatic event should not be overlooked, especially for our students of color and their families. Schools cannot assume that if these students misbehave, it is because they are “bad kids.” Schools must understand that misconduct may be caused by trauma produced by the environment of racial hatred that all students, especially students of color, have had to endure their entire lives. Understanding the negative impact of the trauma

from COVID-19 and racial discrimination and hatred requires schools to implement policies, protocols, and procedures that will account for and address the resulting mental health needs of our students. Implementing the provisions of Section 504 of the Rehabilitation Act can enable schools to support students and help them remain in school.

Child Find

Schools should already be aware of the Child Find requirements of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. Child Find requires public schools to locate, identify, and evaluate all students residing in their district who may be in need of special education services or educational accommodations. These laws require schools to assess any student they suspect of having an IDEA or Section 504 disability and provide the required services or accommodations that will allow that student to receive a free, appropriate, public education (FAPE).

Qualified Disability

The definition of a qualified disability under the IDEA is not the same as the definition of a qualified disability under Section 504. IDEA is an educational law requiring schools to provide special education and related services to all students with qualifying disabilities. The determination of a qualifying disability under IDEA requires the school to identify the student as having one of the 13 specified disabilities and prove that the student’s educational performance is adversely impacted due to that disability. The 13 disability categories are autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment (including blindness).

Section 504 is an anti-discrimination law requiring schools to provide students that have a qualifying Section 504 disability equal access to the opportunities the school provides to non-disabled students. Section 504 is not an education law and does not require that the disability be educationally related. A student who has aphysical and/or mentalimpairment which causes substantial limitation of a major life activitymay have a qualified Section 504 disability requiring the school to provide the student with reasonable accommodations. Majorlifeactivities include caring for one’s self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Mental impairments include, but are not limited to, conditions that prevent the mind from functioning normally. Accordingly, students who have suffered trauma thatcauses themto experience depression, PTSD type symptoms, or other mental illnesses may qualify as having a Section 504 disability. The assessment for qualification under Section 504 must be conducted without considering mitigating factors. To illustrate, consider the student who pres-

ents with severe depression. While on medication, the student’s problems are significantly reduced. But, Section 504 directs that the correct question to address during assessment is, “What if the student was not on medication?” If the answer is that the student would be unable to attend school because of uncontrolled emotional problems, the student may have a Section 504 disability. Students who have behavioral or mental health problems that rise to the level of substantially limiting a major life activity have the right to receive reasonable accommodations from schools even if many of their symptoms might be reduced with medication.

Best Practice

If a school concludes that a student’s mental health problems do not qualify as an IDEA disability, it should then assess the student for a Section 504 disability. Some students experiencing mental health disorders who do not qualify for services under the IDEA, do qualify under Section 504. Once schools have collected the assessment data required under IDEA, they should use that data to complete a Section 504 assessment.

In our current situation, before punishing, suspending, or expelling the student due to behavior issues, schools should ask “What is driving those behaviors?” To answer this question, schools must look at the environmental and societal issues that may be contributing to the behaviors. As one expert stated, “The ambient stress in a locked-down household in which parents are fretting, perhaps quarreling, and disinfecting everything does not go unnoticed by children.”1 This stress can create a mental health disability for a child who never had mental health issues before the pandemic. Additionally, schools must consider the impactofracialdiscriminationandbiasuponstudents of color and the threats and harassment experienced byAsianstudentsrelatedto COVID-19.Theseenvironmentalandsocietalfactorsmust beincludedintheassessmenttodeterminewhetherornotastudenthas

The ambient stress in a locked-down household in which parents are fretting, perhaps quarreling, and disinfecting everything does not go unnoticed by children.

adisabilityunderSection504andthereforerequires educationalaccommodations.

Section 504 provides important protections for the education rights of students who have a substantial limitation of a major life activity including, but not limited to, mental health problems. Identifying students who meet the disability qualifications under Section 504 allows schools to implement accommodation plans that offer equal access to education for all students, disabled and not. The current pandemic with its lock-down requirements, increased economic and emotional stress, and disruption of normal life combined with the magnification of racial discrimination and hatred has and will tremendously impact the mental health of our students. Section 504 of the Rehabilitation Act can offer schools a way to provide students the mental health supports they need.

References

American Academy of Pediatrics (May 2020). COVID-19 Planning Consideration: Return to In-Person Education in Schools.

The Kids Are Not Alright, (Jeffrey Kluger, quoting Robin Gurwitch, Professor, Duke University Medical Center, Time Magazine, August3/ August 10, 2020, page 67)

Lawrence J. Altman, J.D., Adjunct Faculty, Avila University, School of Business and School of Education, Kansas City, Missouri, ljalaw@sbcglobal.net