504 Regulations Under the Current Administration

Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, June 8, 2023, we discuss "504 Regulations Under the Current Administration."

 

      My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today’s call, as The Federalist Society takes no position on particular legal or public policy issues.

 

      In the interest of time, I'll keep my introductions of our speakers brief, but if you'd like to know more about any of our panelists, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us Professor Robert Dinerstein, who is a professor of law and director of the Disability Rights Law Clinic at American University Washington College of Law. Professor Dinerstein has been with American since 1983 and has held a wide range of positions there. He's an expert on disability law who has published extensively in his field and contributed to the cause of disability rights in public, private, and nonprofit sectors.

 

      We're also joined by Kimberly Richey, who is currently serving in the Florida Department of Education. Ms. Richey is a former acting assistant secretary and principal deputy assistant secretary in the U.S. Department of Education Office for Civil Rights. Ms. Richey has spent many years in the education space, having served as the acting assistant secretary and deputy assistant secretary in the Office of Special Education and Rehabilitative Services at the Department of Education.

 

      And, finally, we're delighted to have with us as our moderator Ms. Sarah Parshall Perry, who's a senior Legal Fellow at the Edwin Meese Center for Legal and Judicial Studies. She also formerly served in the Department of Education, where she was a senior counsel to the assistant secretary of Civil Rights. Ms. Perry's research and publications focus on civil rights, courts, the Constitution, and other important issues. And I'll leave it there.

 

      One last note: throughout the panel, if you have any questions, please submit them via the question-and-answer feature so that our speakers will have access to them when we get to that portion of today's webinar. With that, thank you all for being with us today.

 

      Ms. Perry, the floor is yours.

 

Sarah Parshall Perry:  Thanks very much, Kayla.

     

      Section 504 of the Rehabilitation Act of 1973 protects qualified individuals with disabilities from discrimination in any program or activity that receives federal funding. Now, it applies in a broader way of context, including colleges, corporations, state government entities, and more. And for purposes of Section 504, disabilities include any physical or mental impairment which limits major life activities. The statute requires broad construction and coverage.

 

      But the current administration has grappled with the application of Section 504 from the outset of Biden's presidency, most notably within the context of remote learning, masking, transgender status of students, disability spheres, and more. And the President has also faced calls for revision and updating of Section 504 and has issued some guidance soliciting input on just what such provisions and possible amendments might be required.

 

      So we'll focus today on the application of Section 504 within the education context. And I've no better guests to discuss the current permutations of Section 504's applicability than my two tremendous guests.

 

      So the administration, as I mentioned, has issued quite a bit of informal guidance. And, despite the fact that there have been calls for revamping and updating Section 504 through the notice and comment process and an updating of the regulations, which have not been touched since 1977, there have been no NPRMs, or Notice of Proposed Rulemakings, on Section 504 yet to appear.

 

      So what we'll start first with is a discussion of some fundamentals on this particular civil rights law, and then we'll move into a little bit of where its applicability under the current presidency is proving to be a bit problematic and what some solutions to that problem might be.

 

      So, Kim, I'm going to start with you. All teachers and school administrators have to understand the provisions of the two major laws that impact students with disabilities: the Individuals with Disabilities Education Act—or IDEA—and Section 504 of the Rehabilitation Act. So can you lead us in a discussion of what the major differences are between those two laws?

 

Kimberly M. Richey:  Yeah, absolutely. And thank you so much, Sarah. It's so good to be here with both you and Bob to talk about this important issue.

     

      So I think it's a really important question because I think part of why schools tend to struggle with the implementation of Section 504 is that the various laws that govern the education of students with disabilities tend to be very different. And, of course, you referenced IDEA. And, of course, we're talking about Section 504 today.

 

      So, as you noted, Section 504 is a civil rights law that prohibits discrimination based on disability. It essentially says that no student, as a result of their disability, can be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination. On the other hand, IDEA is a comprehensive federal law that guarantees children with disabilities that they receive an education—a free, appropriate, public education in the least restricted environment. It establishes very specific rights and protections for students with disabilities, and it imposes specific obligations on schools with regard to how they educate students under IDEA.

 

      There is specific funding attached to IDEA. So the U.S. Department of Education allocates funding—a significant amount of funding—to states, who then pass that money along to schools so that they can fulfill their obligations under IDEA. Historically, it has been underfunded, whereas Section 504 comes with no funding stream. There is no funding attached to Section 504. Essentially, any school that receives federal funding from the U.S. Department of Education is required to comply with Section 504. So that goes all the way from elementary schools to middle schools to high schools, all the way up to colleges and universities.

 

      Now, under Section 504, a child is a child with a disability if the student has any physical or mental impairment that substantially limits one or more major life activities, or if they have a record of such an impairment, or if they are regarded as having such an impairment. So you have a very loose definition of what constitutes disability under Section 504 as compared to IDEA, where a child is a student with a disability if they meet—if they qualify as needing one of 13 different specific disability categories and it is determined that the child needs special education and related services. Or another way to put that is that they need specially designed instruction as a result of their disability. So under IDEA, the disability must impact the student's ability to learn in the general education curriculum, and that student really does need a specialized instruction to make progress in the school.

 

      The last note that I'll focus on, I think, if we really want to distinguish between IDEA and Section 504 is what happens when a student is determined to be qualified under either law. So under IDEA, the law requires that every eligible student who's been evaluated receive an IEP, which is an Individualized Education Program. The law is very specific about what must be in this IEP. It is a written, comprehensive program that includes several different statutory components, present levels of academic achievement, and functional performance. It includes benchmarks. It includes short-term objectives. It has to include measurable goals. It has to include descriptions of progress. And that's just to name a few of the very specific statutory components that must be included in that IEP.

 

      On the other hand, you have -- under 504, you have very loose regulations that really don't specifically require a plan. It doesn't specifically require that the plan has to be written. But over the years, the best practice has been that students who are diagnosed or who are eligible under Section 504 are put on what we call a 504 plan. And that most often identifies accommodations or modifications that we are going to make within the classroom and in extracurricular activities, and in other educational programs to make sure that that student has the support that they need to be able to succeed. It has to identify who will provide services. And a 504 plan should also identify who's responsible for implementing that specific plan. But a 504 plan and an IEP are very, very different.

 

Sarah Parshall Perry:  Well, having personal experience, because I had one son with an IEP and one son with a 504, I will tell you, in its own weird way, the IEP process was much easier to navigate --

 

Kimberly M. Richey:  Yes.

 

Sarah Parshall Perry:  -- because there were precise, concrete deliverables, whereas, with the 504 for my youngest son, we were sort of throwing things at the board to wonder what was going to stick.

 

Kimberly M. Richey:  I think that's right.

 

Sarah Parshall Perry:  I have a question for both of you, but, Bob, I'll lead with you.

 

      What is your sense of the general navigability of schools' capabilities right now on Section 504? On the whole, do you think that schools, particularly now, after the COVID pandemic, enforce Section 504 well? Or are there gaps that we really need to be focusing on?

 

Robert Dinerstein:  I knew I was going to do this, and I'm glad I got it -- I did it right away to try to talk through the muting. That's what I get for muting it during Kim's presentation.

 

      It's always a mixed bag. One of the challenges, I think, about looking at whether IDEA or a 504 is taking sometimes very simple language. A 504 itself doesn't have that -- isn't that complicated as a specific [inaudible 10:40]. But what does that actually mean, and how does that carry out -- be carried out? I think, Sarah, you alluded to it. I know in our practice representing parents in special education cases, 504 plans are almost always seen as, "Well, if you can't qualify for the -- under IDEA, what do you get?" And you get something less than are often perceived and less than what you would get under an IEP—under IDEA—but more than nothing. And, of course, the whole point is to provide equal access to the extent that you can -- an equal experience. And that's, as Kim suggested, that's really an important thing to understand, which is under 504—like IDEA—you're really comparing children with disabilities to children without disabilities. Are you making the same programs available, sometimes with reasonable modifications, in order to make that work? IDEA is really -- is a little bit of a difference. It's really almost more substantively focused on what are the challenges that the child has, and how do you address those with specific content?

 

      Now, there's overlap with them. I would say that what I've seen and, certainly, some of this is -- it's not just about pandemic-related things, but certainly the pandemic highlighted certain things. I think schools were -- did have a very significant problem in continuing to provide a level of education that was needed for children during the pandemic. There were certainly children who benefited from remote learning. In fact, some with learning -- with ADHD might have even benefited as opposed to in-person. But many did not. And so, then, we have the issue, for example, under IDEA, of is there compensatory education that those students need.

 

      My sense with 504 is that, again, sometimes, because it's seen as not as rigorous, that sometimes the services fall through the cracks a little bit more than they might under IDEA. And with IDEA, again, as you know, annual meetings of the IEP team -- an opportunity for a parent and a parent's representatives to be in the room and help negotiate what kinds of services and supports might be needed. So that's one thing.

 

      I think a second thing that, certainly, we've seen—and again, whether this has implications for both statutes—but is an increasing number of kids who are in school have significant discipline kinds of issues and how one deals with that. And under both statutes, the real -- this is a little bit not in quite as much depth as I could do with more time. But basically, the idea is to not discipline kids for problems that are the result of their disability. It could be that when a child engages in misbehavior, it's because of their disability. And then what you need to do is address the underlying issue—not always, but sometimes.

 

      And so, I think part of the challenge is to what extent are schools using disciplinary practices? Are they being really good at distinguishing when the discipline problem is disability-related or not? And how is that playing out? And, of course, one of the ways in which it's been problematic is it seems to be that kids—particularly boys of color—may be more likely subjected to more exclusionary types of discipline like longer-term suspensions and expulsions than other kids. So that's -- again, that raises issues of race more than disability, specifically, but it's really intersection of the two.

 

      And I would say a related issue that people are concerned about is what might be called the "school-to-prison pipeline," which is -- again, it does have discipline consequences. But when a child engages in behavior, which if done outside of the school, might be -- might subject them to a liability under a juvenile statute or an adult statute if they were over 18, does that then send them into a system which many of us would wish to keep people out of, obviously, while still maintaining safety for the community? So there's that. There's other things to kind of look at too.

 

      But—and the last one I'll just mention, which we see a lot in our practice—as students go through the elementary through -- K through 12, and hit age 18, there is a question about whether or not, once those children are 18, what kind of decision-making support might they need now that they have reached that age? And historically, the—I would say—kind of knee-jerk response to that was, "Oh"—that schools might say to parents is—"well, you should become a guardian over your child so that you can continue to have the decision-making role you've had with the child." And many of us have been concerned about that as overreaching, overstepping, providing a kind of displacing a student as a decision-maker when, in fact, you should be supporting them. And the concept that has evolved in order to deal with that is something called supportive decision-making, where the goal is to really not displace the student as decision-maker but provide the level of support that he or she might need, which could include, of course, from parents as well.

 

      So that's something where I would like to see the regulations more explicit at recognizing that as an option—not always the only one—but certainly one so that educators and others can be helping students as they go through school, not just with the academics, which are, of course, important, but also with preparing them for adult life, which includes making decisions, learning from mistakes, doing all the kind of things that we kind of take for granted.

 

Sarah Parshall Perry:  Bob, I think those are great responses.

 

      I'm going to ask Kim to give her response to what you've identified as some potential weaknesses in terms of schools' ability to enforce and whether or not there are challenges with general navigability, Kim. So what's your perspective on that?

 

Kimberly M. Richey:  Yeah, Sarah. I think I agree with most of what Bob identified. As I kind of have already referenced, there are such stark differences between 504 and IDEA. And the truth is, we have 14 percent of our student population that's being served under IDEA, so we have just under 8 million kids who are served under IDEA compared to under 2 million under Section 504. So I think, all in all, school staff are less trained on Section 504. They're less aware of the requirements of Section 504. They're less knowledgeable on the requirements of Section 504 for a lot of reasons, including that it's just less utilized. And it's not so prevalent as what you would expect within the school system.

 

      All of that to say, I think that that causes a lot of confusion among school personnel just not being knowledgeable about the basic requirements, what the evaluation means, when to reevaluate, what the communication with parents look like. And also, just the whole determination of whether a student is a student with a disability, I think, in and of itself, makes it very hard for schools to comply. So under IDEA, it's -- you have 13 specific categories. The kid is or is not identified within one of those categories, and then you make the decision about whether they need some kind of specially-designed instruction. Under 504, the school itself, school staff, and a team knowledgeable about the student have to decide whether the physical or mental impairment substantially limits one or more major life activities. So it's much -- it's much less clear. And I think schools -- I think schools struggle with that.

 

      I do agree with one thing that Bob noted, and we've talked about this before. I think that there is a -- there is a category of discipline actions that occur outside of the manifestation determination and outside of that ten-day change in placement that OCR has historically applied to cases. So there's this underlying category of lesser behavioral issues that still interfere with classroom learning and that still make it difficult for students to understand and to acquire the knowledge that they need to have. So I think providing more clarity and more guidance on the use of functional behavior assessments and really finding ways to work with schools on how to address those lesser disciplinary actions that are nonetheless impacting a student's ability to access educational programs and activities would be extremely helpful for both kids and teachers alike.

 

Sarah Parshall Perry:  Bob, let me ask you a question. You did mention the school-to-prison pipeline and disciplinary practices that might disproportionately and discriminatorily impact those students with disabilities. And this is something—again, having a kid both at an IEP and a 504—I experienced this under my own roof, so it is most certainly applicable within that school context.

 

      There was guidance issued in May of 2022 from the Department of Ed OCR that made clear what schools would need to be able to prevent that discriminatory application of disciplinary regulations. Is your view that the administration has done enough in providing clarity on how and when discipline should be used for children subject to 504 protections?

 

Robert Dinerstein:  I think they've made a start, but it actually addresses a broader issue. I'll try to answer your question. But also -- so because the regulations really have not changed since 1977—a year some of us remember well but many of us don't—that a lot of the lawmaking that has occurred over the course of time has been through guidances. And guidances are very important. They certainly indicate how the agency is thinking about things. But it may not provide as much support as notice in common regulation and, certainly, by statute even beyond that. And so, the one thing I think we should say, I think it's a good idea to give people an opportunity to comment for the administration to actually try to put out a Notice of Proposed Rulemaking, which they have been talking about and which I would expect to come out soon, but here we are two and a half years into the administration and isn't out yet.

 

      I do think, though, that part of the problem here, with regard to looking at discipline—I'm not sure this is a legal problem. It may just be an attitudinal or a thinking problem—is when somebody does something that violates the norm in the sense of engaging in some kind of behavior that you feel like you need to sanction, it can be very subjective as to thinking about, "Well, what is -- what was the standard? What did the child actually do?"

 

      Children who are autistic may engage in behavior which looks aberrational to even a well-intentioned teacher or an aide and then, "Okay. We've got to do something. And we've got to -- we're hurting the other kids' ability to learn. We're hurting this child's ability to learn." And so, to me, I'd almost have -- I could see problems with a no-exclusion rule because, again, there'd be issues of how kids are learning. But I almost think you have to start with a really heavy presumption against removal because one thing we do know is that, particularly longer-term removal, I think kids fall further and further behind academically, and so they're not being well served by that.

 

      But I think the basic point that under both statutes is the right one, which is if you say the behavior that, again, is not following the norms that have been set down, the first thing should not be, "Okay. Got to be disciplined," but rather, "Do we have an IEP in place? If we do have an IEP in place, is it actually working? Do we know? Have we -- maybe let's get our team together." And, of course, under -- particularly under IDEA, for you to do anything that's long-term, you have to have a manifestation determination about that. But even that, there's going to be inevitably some subjectivity to it. I just think that the more one can work on -- get non-exclusion, non-restraint, non-seclusion kinds of things, the better, even just in terms of the -- try to just to get the behavior to be more conforming to things.

 

      So I don't know if that answers your question, but that's something we could look at.

 

Sarah Parshall Perry:  Yeah, absolutely. I'm going to stick with you, Bob, because we've got a question from our online audience. And Ernest has asked one question specifically: "Do we have reasonable, clear, precise definitions of what a reasonable accommodation would be? Reasonable -- of course, you hear that. Those of us who are in the law, it makes the hair on the back of our neck stand up from the reasonable-observer perspective. But do we have a definition on what would be sufficient, I say, reasonable accommodation? What guardrails are in place to make sure that we have met our statutory goals?

 

Robert Dinerstein:  Right. Well, Kim alluded earlier, and I agreed with her, that the basic definition of even just a disability has a number of things that are just very subjective. And the 504 definition, which parallels the ADA definition, that Congress had to amend the ADA in 2008 to say, "Look, Court—Supreme Court— you got it wrong with being sort of excessively limiting that."

 

      So one of the moves that had been made, I think, since 2008—and again, ADA and 504 are pretty parallel here—is to say that the goal is to be -- try to cover people, right? So to be a comprehensive way to evaluate, not to be narrowly limiting who gets to make a claim. Now, all that does is it says, "Okay. You are the kind of person—or in this case, you are the kind of child—that these protections are meant to address." What does that, then, mean?

 

      So the next step can be, "Okay. You are presumptively a child who has a right here. You may need a reasonable amount of accommodation." Well, what does that actually mean? And the Court -- this was, I think, something which—when the ADA was passed—business entities and others were very concerned about. What is "reasonable?" It's going to be so costly. How do we deal with it? And, partly because of some other developments, the law hasn't developed as much in that area.

 

      But the basic point would be this: It's up to the student or the parent of the student to say, "Here is an accommodation that we think works with our child." And you've referenced your own children. I'm sure you know they work best in this situation, or "They do best if they -- please avoid this." You come in with some things that you think might work. The school, then, has to basically say, "Well, we know what our educational program is. We know, basically, what we can do. We're not required to -- necessarily to do what you want. Our goal is to try to get together to see if we can find something that will work." So it's got to be effective in a sense that it's going to work and somewhat reasonable in a sense that, also, what the resources are involved.

 

      And that's where it gets also very tricky because a defense to a requirement here is that the entity doesn't have to do something that's an undue burden or an undue hardship, which is measured by sort of excessive financial costs. But the fact is, depending on the size of the school system or the school board, it may be that something could be specifically pretty expensive with regard to a child but, in general, not a large part of a budget.

 

      And so, the other struggle, then, that I think that many have engaged in is: How do you establish undue hardship? And for some entities, it's very difficult to establish that. But the real point about it is—and I think under both 504 and ADA—to promote a dialogue between the entities so that -- where the school folks can sit with the parents and say, "Look. We all want the same thing here. How do we get that?" Again, parents are not necessarily going to get absolutely what they want, but the school might have to push themselves a little bit beyond their comfort zone in order to actually provide the services that might be needed. But inevitably, there's some guesswork here.

 

Kimberly M. Richey:  Yeah. And the only thing I would add to that, Sarah -- and most of you probably know I have been on a 504 plan. I've been on the other side of the table. I've been the student who had to walk through this process. I know exactly what it feels like, and I know exactly what schools often look for and what they should be looking for when we go through this process. The one thing I would say is that when I was the student on the other side of that table, the last thing I would have wanted is for the school to pull up a list of reasonable modifications and say—or accommodations—and say, "Okay. Here are your options."

 

      So the one thing that I like about what Bob just said and about the process is that it forces schools—and it should force schools—to look at the individual student and to say, "Okay. What does Kim Richey need in order to -- in order to overcome this physical or mental impairment that's impacting her education?" We want schools to be in that space where they're making individualized decisions about what's best for students.

 

Sarah Parshall Perry:  I have another question really for both of you, and I'm asking for your best speculative positioning on this. So take it for what it's worth, considering we're all lawyers. But I'm asking you to sort of determine pie-in-the-sky analyses here. Why do you think it is that we have yet to see anything from the Department of Education on an NPRM or proposed revisions to this particular civil rights law? In fact, we saw back in May of 2022 that the administration solicited comments on whether it should be updated, what those updates might look like, and here we are a year later. Originally, we were predicted to be seeing something like this last month, in May of 2023. But as of yet, we've seen no NPRM, which, of course, the administration, on other contexts, has had no problem issuing. They're coming fast and furious for those of us who pay attention to regulatory law. So is it your speculation that they are still trying to determine exactly what those parameters are? Or have they just been more concerned with other administrative priorities right now?

 

Robert Dinerstein:  Yeah. So speculation is there. I do believe they're close. I know that, for example, Department of Education had reached out to some academics to help them in the process of drafting. A few of them -- one's a former colleague. I actually talked with him, but I didn't want to find out, obviously, and he couldn't tell me what the specifics are, but my impression is they're awfully close. I think many people are frustrated with how long it's taken, whether they are looking forward to really robust regulations or they're concerned about them because I think it has taken a long time. And I don't really know -- I think -- so let's just say that I think they have been working on it. But the one thing I think I can say with some certitude is it's not just that they keep telling people, but they're not acting. They really are doing something. But, for whatever -- I think they're also concerned.

 

      Last year, the Supreme Court decided a case which made it -- raised questions about what authority and agency might have in implementing statutes. And I think they—even though it wasn't in the disability or education area—I think they're trying to be mindful of that, which is good. They should be thinking about, "Well, what" -- and it's a little bit tricky with 504 because, as you said, 504 is a one-sentence, one-paragraph statute. But I think they are nervous that if they go too far, that they'll be subject to challenge on that. So that's about the only thing that I can say.

 

      We still are waiting for regulations under the ADA to cover the internet. That's been going on --

 

Kimberly M. Richey:  Right.

 

Robert Dinerstein:  -- for 15 years. So why it is that these things are taking so long, I don't really know. It's possible there's some excessive concern about it, but that's about the best I can do. I'm hopeful that they'll get them out. I know HHS is also looking at them. They've also been analyzing them and OCR too.

 

      I think it's time. These regulations—as I think people know—only came about -- only were signed after a sit-in at a number of places around the country, including the regional office of then Department of Health, Education, and Welfare in San Francisco. It was a month-long sit-in that forced the regulations to be -- forced the Carter administration to issue the regulations. The main person behind it—one of the people, Judy Heumann, who just passed away a few months ago -- and again, that's just some indication of, for whatever reason, these regulations have had this little string tied around them to just being so difficult to deal with.

 

Sarah Parshall Perry:  And I agree, Bob, that there is probably well-founded concern about the coming back of the regulatory state. We've seen everything, from not just the West Virginia v. EPA decision, but striking down of COVID vaccine mandate through the OSHA Act. We've seen a striking down of the CDC eviction moratorium. So we've seen this Court be very wary of overreach on the part of the federal government. That might be something that there's large consideration for, and they're trying to be circumspect, rightly so, I would think.

 

      But, Kim, your speculation as to why we have yet to see a revamp of something for which there have been repeated [inaudible 31:30].

 

Kimberly M. Richey:  Yeah. I think Bob is 100 percent right. I think they are very close. I do know that they were reaching out to stakeholders and reaching out to other experts in the field. The only thing I would add to what Bob said, Sarah, is that I think they received a lot of public input and a lot of feedback when they solicited requests for what within the regulations needed to be changed. And I think that took some time to sift through and to determine policy priorities. What exactly did they really want to focus on from a rule-making perspective? And so, I think that whole process likely added a lot of additional time to the overall rulemaking process, which we haven't even started. But I do think that -- I do think that we will see rules, or at least NPRM, very soon.

 

Sarah Parshall Perry:  We have another question from Ernest online. And he asks, "What discipline criteria and process applies to an IEP student electively enrolled in a general ed summer school program when that student violates the school district's student code of conduct?"

 

      Bob, I'll let you lead with that one.

 

Robert Dinerstein:  Well, again, so if there's a violation of the code of conduct and the child does have the IEP and is in a summer session, which would be an extended school year, presumably, then the thing that would have to happen is there would have to be a determination by the multidisciplinary team to determine whether or not the behavior is or not a manifestation of the disability.

 

      And, again, you can state what -- that's the standard. It's not always so easy to distinguish that. It's not -- we're not talking about blind children who bring guns to school. We're mostly talking about kids with emotional disturbance, other kinds of mental-health-related issues that then overlap with, again, fighting or something like that. So there can be some interpretive requirement there. And then you sort of look at and say again, "Is there -- has there been a behavioral assessment in place? Has there been a functional behavioral assessment? Is there a behavior improvement plan? Can you do -- look at those things before you go through to the more extreme version of excluding a student?

 

      Many years ago, in the Clinton administration, I actually served as a special hearing officer in a dispute between Virginia Department of Education and the U.S. Department of Education regarding what to do about kids with disabilities whose disability was not, in fact, manifest in the discipline and what services they were required, because those students were being expelled or suspended long-term, and then they were kind of at loose ends. They were getting nothing. And one thing we know is if they were in special ed before that, they were going to need some kind of intensive services. And I actually ruled that under—this is pre-1997— that the IDEA did actually cover that and that they needed to get some alternative services, although in a different environment. And they went up all the way to the Fourth Circuit. The Fourth Circuit originally affirmed. Then they reviewed -- reversed it en banc. And then Congress amended the IDEA to actually require it.

 

      So all of which is to say that, in that process, I learned quite a lot about how, at the school level—Kim obviously has that experience in a way that I don't -- but looked at these kinds of things and pretty much what you wanted to do is let's not too hastily try to exclude. And again, with regard to the student conduct, conduct codes have all kinds of things, some of which really are quite serious, and you would be very concerned about. Others, maybe you need to think about, "Okay. How clear is it that the person actually intentionally violated a provision of that code?"

 

Kimberly M. Richey:  Bob, I don't know if you agree, but it seems like the parents that I work with -- it seems like there's a lot of confusion around this issue in the fact of when a school actually has to do the manifest determination to determine whether the conduct or the behavior is related to the disability. And it almost sounds like this question is kind of -- hits right in the center of that confusion. Schools can have codes of conduct. They can discipline students with disabilities under those codes of conduct. And an examination of whether behavior is related to a disability is really only triggered in most states if there's been some kind of change in placement --

 

Robert Dinerstein:  Right.

 

Kimberly M. Richey:  -- which is a removal for ten or more days. And so, most schools that I see tend to push that ten-day removal limit, and they'll go as far as they can down that path so as to not trigger those other kind of procedural obligations. I don't know if that's your experience or not.

 

Robert Dinerstein:  Well, that does happen. And then you get a -- or you can have a situation where schools are going right up to that line and then a kid is accumulating multiple times. It's like a requirement of you don't have to report income over $200, and you keep reporting $199.95, which just happened recently. So if that's what you see happening, and you're representing a parent, you say, "Okay. This is something that we have to kind of address in that way." But again -- so one could think that there's -- they're trying to avoid more process by not going past the ten days. Or the other thing is, a consequence of that just might be maybe without that limitation, kids would be 10, 20, 30, 40 days and be --

 

Kimberly M. Richey:  Yeah.

 

Robert Dinerstein:  -- expected to have it be a shorter period. But you're right. It's this question of when it's triggered and that not everything necessarily is going to bring us to the most [inaudible 37:11].

 

      The other thing is that I -- frankly, though, can be a concern is—and it's an element of dealing with disability that I think can be problematic is in the guise of, "Oh, let's not do the most serious thing and engage all these procedures. Why don't you just take Johnny home for today?" That can be a very humane response but also could be a way of not providing the kind of expectations for behavior that, actually, the child needs to learn. And so, there's a little bit of that, "Okay. Don't take it. Don't have him be in school tomorrow because he's kind of disruptive. And, by the way, he doesn't seem to want to be here anyway." Win-win. Well, no, actually, it's kind of lose-lose because the child's not benefiting from the education that he or she needs.

 

      And the next thing I'll just say is—because this comes up all the time, which is -- and again, it's not my area other than to say I don't know whether the level of training of teachers and—whether special ed or general ed teachers—is keeping up with the kinds of behavioral and other challenges that kids are presenting, because increasingly you hear, "We just don't have the expertise to figure out how to deal with X or Y." And these statutes have been around for a while, and I would hope that education departments would figure out, "We need to train teachers to deal with --

 

Kimberly M. Richey:  Right.

 

Robert Dinerstein:  -- these issues."

 

Kimberly M. Richey:  Great point.

 

Sarah Parshall Perry:  Assuming that we'll see an NPRM if you're developing your wish list of what you'd like to see revamped or updated on the Section 504 regulations—knowing it's been decades since it's been touched—I want to ask both of you—and I'll start with Kim—what ideally you would like to see from this administration or a future administration in terms of updating something that's clearly in need of being updated.

 

Kimberly M. Richey:  Yeah. It's a great question, Sarah. I think that I am with Bob on this. I fully support -- if we had had another term under the Trump administration, this would have been, I think, at the top of my recommendations list. I do think that we are long overdue as far as updating the 504 regulations. And I think there's a real opportunity for just basic cleanup.

 

      Most of what OCR requires under 504 and under their 504 enforcement is simply just a result of how things have evolved over the last 45 years. So, for example, in OCR, we are -- those of us in the field call the educators "504 teams." Those are the people that evaluate the students. All the rules as a group knowledgeable about the students we say that 504 plan should be updated annually. The rule says "periodically." So the regulations still refer to "handicapped persons," instead of individuals with disabilities. So I think that there are just a lot of opportunities to update and align the regulations with OCR's current practices and with best practices from the field that have emerged over the last 45 years. And I think that would be incredibly helpful for students. I think it would be incredibly helpful for parents, and I think it would be incredibly helpful for educators, and for school leaders who do this work on the front lines every day.

 

      More generally speaking, I think that there are opportunities to include more specifics in the regulations pertaining specifically to procedural protections. The regulations tend to be more vague, everything from evaluations to communications to reevaluations. I think there's a real opportunity to provide more clarity, to set more clear standards. Just all of that, I think, provides more protection for students with disabilities. I think there are opportunities to address behavioral issues, which we've already discussed a lot today.

 

      I think there's opportunity to be more clear about how schools can more proactively address mental health. We're in a very unique time right now where schools have received millions and millions of dollars from the U.S. Department of Education to address mental health. And we are seeing mental health issues younger and younger in students that are younger and younger, as early as kindergarten, first, second grade. And we're also seeing them -- it's just more prevalent. And so, I think schools would benefit from guidance, and they would benefit from more clarity about when those mental health issues—whether it's anxiety or depression or mood disorders—when that evolves into or reaches the threshold of being a disability, when that condition actually substantially limits a student's ability to learn and how they transition those students onto 504 plans and really provide support and needed services to kids under 504.

 

      Digital accessibility, I think, Bob referenced that. I think it's a huge opportunity to finally provide some regulatory clarification about what schools -- what the requirements are. This was an enforcement priority under the last administration. It's continued to be an enforcement priority under the current administration. They've launched video series. They have launched over 1,000 compliance reviews, mainly at the college and university level, but I would love to see some additional support here on the issue of digital accessibility, even in the K12 space. I think it would be incredibly helpful.

 

Sarah Parshall Perry:  I'll give you my quick impressions just, again, having navigated the process with a student who was severely impacted by ADHD but is also touched by mental health considerations. Homeschooling him, which is to say he was being virtually schooled, and I was doing most of the oversight in having to stand next to him, weigh things out, made sure he was paying attention, those are, I think, desperate updates. And I think the mental health issues particularly that have been exacerbated by COVID itself are yet to be sufficiently addressed. Many of them have picked up. They have gotten more severe, more impactful for these kids, so providing some kind of a basis and hearing from stakeholders.

 

      To my knowledge, based on review of the Federal Register, they held no 12866 meetings with stakeholders because, of course, we have to yet to see the NPRM, so that whole developmental process has sort of been happening either behind the scenes, or it's not yet taken off, and so we haven't had an opportunity to talk to the teachers, the administrators, the parents who are navigating this process on their own.

 

      But, again, wish list, Bob. What would you like to see the administration do in terms of their updates? And if not this administration, future administrations?

 

Robert Dinerstein:  Yeah. And, again, I just -- given that these have been in effect for so long, we should be thinking that it's not just, "What do we do over the next two years or six years or however long?" but rather more generally because we've seen how long it takes to get this kind of engine going. So we want to get it as right as we can get it.

 

      Some of the things I would say, first of all, having now been through the worst of COVID—we're not over with it, but it now feels like it's more of a kind of a chronic thing to deal with as opposed to the early years of it—thinking about just what do we do in situations of extremity like that, in terms of dealing with kids with disabilities, in terms of access and things like that, so I think that you could have a general level regulations that talk about when is remote learning going to be appropriate, and how do we make sure we're making that available but also not just channeling kids with disabilities into that because we don't really want to have them in the classroom, which is a concern that I have.

 

      I'd like to see more -- the law is a little bit -- generally says that it's a violation of Section 504 if there's a disparate impact, not just intentional discrimination. But the law's, again, a little bit unclear about that. The Supreme Court has sort of hedged a bit about that. It would be nice if they sort of explicitly said that.

 

      There's been other law developments which maybe shouldn't be in the regs but should be thinking even legislatively about clarity about, for example, what kind of damages can you bring if you're bringing a 504 complaint as a plaintiff, not through the school system, which we've been more talking about. And under the Cummings case, the Supreme Court said, for example, "You can't get emotional distress damages if you bring a private right of action in your 504."

 

      Actually, just today, the Supreme Court decided in case Tavelski -- Talevski, rather, which had raised questions about whether private parties could bring cases that did not provide exclusively to -- for private enforcement. It was in a different context, but the Court actually upheld that. And there was some concern on the part of advocacy groups that if the Court ruled the other way, and particularly went so far as to say, "Even a statute like 504 doesn't say you can -- an individual can sue." That's been an interpretation of it, which I think is pretty solid, but nevertheless, that could have been some issue there.

 

      I'd like to see really restriction of, again, restraint—physical restraints, seclusion certainly, so-called chemical restraints in terms of medication to be more explicit about that. That's something which really has evolved over this 46-year period, and I think could be looked at specifically.

 

      I mentioned earlier about acknowledging in terms of decision-making for children in the process, concepts like supported decision-making, which have come on -- which certainly were not around back in 1977. And I'd like to see that as well. And then real attention, finally, to some of the intersectional kinds of questions of not just disability but disability and race, disability and gender, where in fact the combination of those characteristics may lead to particular problems that kids who meet those multiple categories face.

 

Sarah Parshall Perry:  Well, interesting you should bring that up, Bob, because I've given you both nothing but softballs up to this point. But now we know that the Supreme Court has set for conference on June 15th a case called Williams v. Kincaid which will bring to light the question of whether or not, under the ADA, gender dysphoria is a disability suitable for accommodation requests.

 

      So taking the parallel in understanding that the administration, both OCR Ed and the Department of Justice, have issued joint Dear Colleague letters saying, "Our interpretation of 504 includes gender dysphoria for which accommodations would be suitable." Do you think that's faithful to the mission, the history, the purpose, and the text of that actual statute?

 

Robert Dinerstein:  I just finished grading my students' exams this week. And I actually debated whether I would include a question on this because we did the last class, I think, talk about the Williams case, which at that point the Court hadn't yet considered it or hasn't yet considered. I think it's a really interesting question. The provision in the ADA that deals with gender issues is -- and those of us who remember this at the time -- this was the grab bag of all the people we don't want to cover. Transvestites -- it's actually quite appalling. I'll say that specifically in terms of the people we are really so worried about. And some of those were conditions that nobody would think of as a disability.

 

      Gender dysphoria -- again, gender identity is not the same as gender dysphoria. One of the issues in the Williams case was what did we have in existence under the DSM, the Diagnostic and Statistical Manual, at that time? What did Congress think it was doing?

 

      So I think it is -- my own view is, is it a specific textual interpretation? That's, I think, debatable. Is it consistent with maybe a broader interpretation of the statute? I think you would make that case. I think I would. I think, again, the whole point of dysphoria is to suggest something that looks like disability in the sense of "difference from." And, again, not necessarily something that is lesser than but just a feeling of, "I'm not in the right body," so to speak. But it's a -- partly comes down to your philosophy of interpretive statutes and broad provisions, which is, is it literalness or is it not?

 

      And literalist doesn't necessarily get you one way or the other. When the Court decided that Title VII covered LGBTQ status, that was certainly not in the contemplation of Congress when it was passed in 1964, but sometimes the language is such that you can incorporate that.

 

      So mostly I would say that kids who are in the situation of gender dysphoria are in extremes in some ways, and families are struggling with it. Governments are struggling with it. And so, if this is a provision that can allow us to kind of take a look at it, I would be in favor of that.

 

Sarah Parshall Perry:  You've got a question from Molly online, and she is asking for inclusion and clarity about gifted students and twice-exceptional students. So are those gifted ed students special ed students for purposes of needing accommodations because they are formed as sort of neural divergent?

 

      So, Kim, let me get your perspective on that.

 

Kimberly M. Richey:  Yeah. Absolutely. I actually really appreciate this question because I think it was -- my first stint in OCR was under the Bush administration from 2004 to 2009. And we actually issued a Dear Colleague letter to remind schools that you could have students who were twice-exceptional, that it is common, and it occurs, and a student's propensity to have gifted qualities in one particular area does not preclude them from meeting the definition of a student with a disability under 504 or IDEA. And so, I think that's been OCR's longstanding interpretation. And those students who are twice-exceptional would meet the definition of disability and have all of the protections under either 504 or IDEA, respectively.

 

Sarah Parshall Perry:  Bob, what's your take about twice-gifted, twice-exceptional, or gifted in special ed students?

 

Robert Dinerstein:  Yeah. I can't say it better than Kim did. I would add that if you were not to acknowledge the sort of the disability part of that twice-exceptional you would be sort of in a sense agreeing to just mediocrity. Okay, here's a kid who's gifted, who probably can do well, notwithstanding the disabilities, or well enough but yet not really meeting his or her potential. And so, I do think you kind of have to separate that out. If you meet the criteria for it to be covered under 504, IDEA, then we should be addressing that.

 

      It is interesting because the sort of better thinking, let's say, or best practice with regard to thinking about disability is in the context of sort of what's called a social model of disability thinking about disability as impairment that interacts with one's environment, both attitudinal, physical, etc. But statutes' interpretations under 504, ADA, and IDEA do push us sometimes into a more medical model because, again, we have to fit into categories as we were talking about earlier. So there's a little bit of a disconnect there.

 

      And so, in this kind of case, I think you'd say, "Our goal should be to try to serve this child. This child" -- most children probably are functioning in the middle range. This is a child by -- who's an extreme in both cases, and the extreme operates in different kind of ways: grade ability and giftedness on one hand; challenges on the other, and it doesn't mean it's going to be easy to, but I think we have an obligation to try to address it.

 

Sarah Parshall Perry:  Bob, as we're getting to the close of the session here, I want to give you an opportunity to kind of tell us what you're watching in terms of trends. We've talked a little bit about damages. We've talked about the Williams v. Kincaid case. We talked about Cummings v. Premier Rehab Keller, one of the cases that I've written on as well, because they recognized those intentional emotional damages are not specifically recoverable.

 

      And I find it interesting, actually, that the Supreme Court denied cert on a case that might have made very clear to us whether or not disparate impact would have been a requirement under Section 504 when it dismissed cert—denied cert—in CVS Pharmacy v. Doe if I remember correctly. So there have been some particular opportunities that the Court has not actually picked up on and provided more clarity when, in fact, it's very clear, based on the discussions we're having and what we're seeing practically in terms of its application, that there are distinct opportunities to make it easier to apply and to benefit kids in a more expansive way. So what are you watching right now in this particular field?

 

Robert Dinerstein:  Yeah. So just one clarification, because it's an interesting one. On the CVS case, it actually wasn't cert denied. Cert was granted, but groups kind of approached CVS and said, "Please," basically, withdraw your petition, even after it had been granted. And that was done, which I think was an indication, you might say, of concern about what the Court might do with that.

 

Sarah Parshall Perry:  Sure.

 

Robert Dinerstein:  But, again, the disparate impact -- and what goes back here is the first case under 504 the Supreme Court decided was Southeastern Community College v. Davis. And at that point, the regulations were draft. They weren't yet finalized. Or, I guess they had just been finalized. And one of the things was the Court said, "Well, 504 does not require affirmative action." And that was -- got everybody, "Well, what does that exactly mean?"

 

      And then a few years later, in Alexander v. Choate, they said, "Well, we kind of really went a little too far when we said that. We really mean that it may require some action on the part of the entity. And sometimes it's going to require disparate impact sometimes but not always." So it left it purposely vague. And that was 1985. So I do think some clarity on the part of what, again, as an interpretation of the statute.

 

      Now, there is -- this gets really complicated with how far can regulations under 504 affect how the statute is interpreted. There's some parallel with respect to Title VI regulations and '64 Civil Rights Act. So all of which to say, the ADA is very explicit about it being -- it including disparate impact. That could be something that could be clarified under 504, I think, and that would be helpful.

 

      The other thing I think, which the Court did act quite directly about this last term, was in the Perez case, where it said, "If you're a parent, and you're challenging the IEP in the education system, and you get the relief that you could get from a hearing officer, but you also have a potential for damages, you don't have to exhaust the remedies under IDEA that you've already -- where you've already achieved it. You can go into court." Now, what they didn't say was what relief could you get in court? But at least you could file your case.

 

      And so, the last thing I would say is Cummings says 504 does not provide for emotional disturbance or distress damages because it's a spending power statute. The ADA is not a spending power statute, but, as you know, the ADA and 504 have language back and forth saying, "Interpret each the same way." So would we interpret the ADA to be consistent with 504 and say there's no emotional distress damages? Or would we say that, because the ADA is not a spending power statute, it shouldn't be limited? It's got a different rationale. And that's a good exam question, I guess, I would say at this point, because there's no absolute answer. There's interpretations in art and advocacy for you.

 

Sarah Parshall Perry:  Well, you've got time. We're not exactly at the end of the semester yet.

 

      Kim, I'll ask you the same question, as somebody else who has been working in this field for so long: What are the legal or cultural or social trends you're looking at in terms of 504 and 410?

 

Kimberly M. Richey:  Well, I think the transgender issue, that you raised before, I think, is pressing on everyone's minds: schools, parents, students. The implications of that case are going to be extremely significant.

 

      I feel like what I'm hearing from parents a lot right now, Sarah, is the request to focus a lot more on transition issues under 504. And I feel like that is bubbling up in the field. So, unlike IDEA, if you are a child with a disability who is served under IDEA, your services under that law are going to cease once you graduate from high school, even though that can take you up into 21, 22, 23 depending on what state you're in.

 

      On the other hand, Section 504 does apply to colleges and universities. And colleges and universities do have to provide accommodations and modifications to college-age students with disabilities.

 

      So I think, overall, unlike IDEA, we have not done a good job under Section 504 of focusing on that transition from high school into college or into any type of higher education program, and even subsequently into employment. So I think that even applies to students who are being served under IDEA who may have no idea that they can qualify for services under 504 once they transition into a higher education environment. So I think it would be great to see some guidance. I think that there's room for technical assistance there.

 

      And I think that's one thing that parents are particularly interested in in a coast—I'm sorry—in a post-COVID environment where they feel like their child missed out on some key instruction. I think they're looking more and more, as students transition into college, to have some supports and services that students with disabilities may need.

 

Sarah Parshall Perry:  And with that, we are right at 3:00. This has been a real joy to be able to talk with you both today. As, obviously, somebody who's very passionate about the issue based on my own life experience, it's wonderful to moderate a discussion with two experts who are doing such great work in the field. Bob Dinerstein and Kim Richey, thank you for joining me today.

 

Robert Dinerstein:  Thank you.

 

Kimberly M. Richey:  Thank you so much.

 

Chayila Kleist:  I wanted to second that. Thanks, on behalf of The Federalist Society, to our experts for joining us and sharing your valuable time and expertise. And thank you to our audience for joining and participating.

 

        We welcome listener feedback at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.

 

 

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