Volume 44, Issue 2
By Adrian E. Alvarez
In May 2022, the Department of Education (“ED”) announced that it would be updating regulations implementing Section 504 of the Rehabilitation Act of 1973, a general antidiscrimination statute that provides qualified individuals legal and administrative remedies when they experience disability discrimination in federally assisted programs and activities. Many constituents recommended amending the K-12 portion of the regulations so that they more closely align with the Individuals with Disabilities Education Act (“IDEA”), a statute that allocates funding to states to provide special education and related services to children with disabilities.
While there are benefits to taking this approach, this Article argues that ED should not adopt this strategy whole hog. IDEA is flawed in ways that deny many children with disabilities equal educational opportunity, and in some instances (both obvious and not so obvious), § 504 regulations contain “stopgap rights” that could be used to ensure that all disabled children are able to access the school curriculum when IDEA falls short. This Article also argues that the congressional record suggests that Congress intended for § 504 to serve as a stopgap to IDEA and provide a distinct path for disabled students to secure special education and related services needed to receive meaningful access to their education. Although there are barriers in the way of full realization of § 504 rights, advocates should know that they are on sound footing when they request educational services under the statute, given Congress’s understanding that § 504 could be an alternate pathway for ensuring that disabled children receive the special education and related services they need to access their education.
*Assistant Professor, St. John’s University School of Law. From September 2022 to May 2023, Alvarez served as Special Counsel to the U.S. Department of Education’s Office for Civil Rights (“OCR”), advising the agency on amendments to its federally assisted regulations interpreting Section 504 of the Rehabilitation Act of 1973. The Author would like to thank Robert Dinerstein, Robert A. Garda, Phillip Lee, Mark C. Niles, Claire S. Raj, Jennifer Rosen Valverde, and Mark C. Weber for generous feedback on earlier drafts of this Article. The Author would also like to thank Rebecca Araten and all the editors at the Yale Law & Policy Review who have helped to shape and bring this Article to the finish line. Finally, the Author would like to dedicate this Article to the countless attorneys at OCR who over the years have tirelessly fought so that disabled students across the country could have meaningful access to their education.
