Chapter 11 Discrimination Under Section 504 and the Americans with Disabilities Act

• Date: 25 July 2011
• Published date: 25 July 2011
• Pages: 209-227
• DOI: https://doi.org/10.1108/S1479-3660(2011)0000012014
• Author: Allan G. Osborne,Charles J. Russo

CHAPTER 11

DISCRIMINATION UNDER

SECTION 504 AND THE AMERICANS

WITH DISABILITIES ACT

Allan G. Osborne Jr. and Charles J. Russo

ABSTRACT

Section 504 of the Rehabilitation Act and the Americans with Disabilities

Act prohibit schools from discriminating against otherwise qualified

individuals with disabilities because of their impairments. The major

difference between the two statutes is that the former applies only to

recipients of federal funds, whereas the latter extends protections to those

in the private sector. Otherwise qualified individuals with disabilities are

those who have physical or mental impairments, which substantially limit

one or more of their major life activities, a record of such impairments, or

are regarded as having such impairments but who are capable of meeting all

of a program’s requirements in spite of their disabilities. In this chapter, the

authors review the statutes’ various requirements as they apply to both

students and employees in the school setting. Specifically, using numerous

court cases as examples, the chapter outlines the reasonable accommoda-

tions schools must provide to extend the benefits of their programs to

individuals with disabilities in terms of providing services or employment.

Furthermore, the chapter discusses the limitations on the types of

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Advances in Educational Administration, Volume 12, 209–227

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ISSN: 1479-3660/doi:10.1108/S1479-3660(2011)0000012014

209

accommodations schools must provide when doing so would place an

excessive financial or administrative burden on the school board.

Section 504 of the Rehabilitation Act of 1973 (Section 504) provides that

‘‘[n]o otherwise qualified individual with a disability yshall, solely by

reason of her or his disability be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any program or

activity receiving [f]ederal financial assistance y’’ (Section 504, y794).

Section 504 prohibits any recipient of federal funds from discriminating

against individuals with disabilities in the provision of services or employ-

ment. To the extent that Section 504 applies to any agency or organization

that receives federal funds, it pertains to all public schools and many private

schools.

The Americans with Disabilities Act (ADA) was enacted in 1990 to forbid

discrimination against individuals with disabilities in the private sector. The

ADA’s preamble states that its purpose is ‘‘to provide a clear and

comprehensive national mandate for the elimination of discrimination

against individuals with disabilities’’ (ADA, y12101). Principally, the aim of

the ADA is to extend the protections granted by Section 504 to programs

and activities that are not covered by that statute because they do not

receive federal funds. Even though the ADA is aimed primarily at the

private sector, public agencies are also subject to its provisions. Title I of the

ADA prohibits discrimination by private sector employers with 15 or more

employees. Title II applies to public accommodations, such as schools, using

language similar to that of Section 504.

In spite of the similarities between antidiscrimination intent and purpose

of each statute, conforming to the mandates of Section 504 does not

automatically translate to compliance with the ADA (Russo & Osborne,

2009). Congress amended the ADA in 2008 to clarify its intent regarding the

definition of individuals with disabilities. The ADA amendment was passed

largely in response to Congress’ view that the U.S. Supreme Court had not

correctly interpreted its objective and effectively expanded the definition of

individual with disabilities to exclude the effect mitigating measures had on

the classification of persons as having disabilities. The Supreme Court

decisions, when taken together, had specified that individuals whose

physical or mental impairments were corrected through medication or

other measures did not have impairments that limited major life activities.

Thus, under these rulings employers could consider the effect of mitigating

measures when determining if a person’s major life activities were

ALLAN G. OSBORNE AND CHARLES J. RUSSO210