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  • Robert Lusk

Do We Need More 504 Regulations?


On May 6, 2022, the U.S. Department of Education (DOE) solicited comments for potential new regulations implementing Section 504 of the Rehabilitation Act of 1973. Section 504, for the uninitiated, is one of three federal statutes that requires states to provide eligible disabled students with a free appropriate public education (FAPE). Additionally, many states, including Michigan, have their own statutes and regulations addressing the same topic. The articulated basis of the DOE’s recent request is to “strengthen and protect the rights of students with disabilities.”


Public educators and public-education advocates may wish to consider whether more federal protection and strength of this sort would be helpful. While considering this question, it should be borne in mind that, the year after Section 504 was enacted, Congress enacted a comprehensive statute governing the education of disabled students, the Individuals with Disabilities Education Act (IDEA). Three years later, in 1977, DOE promulgated regulations under Section 504 that reiterated, or were interpreted to reiterate, IDEA’s protections for disabled students who were and were not covered by IDEA. Then, in 1990, Congress enacted Title II of the Americans with Disabilities Act, which effective repeated Section 504’s reiteration of IDEA’s protections for disabled student, with a few additional flourishes.


There is no question the topography of these laws and regulations is so convoluted a small army of administrators, lawyers, advocates, and consultants are necessary to assist parents and school districts navigate the thickets. I served in this capacity for 40 years, and still do. Second, federal and state governments do not provide anything like the funding necessary to implement and administer these various mandates. Third, the current scheme promotes a compliance-culture, to the extent the focus can become doing what is most likely to avoid liability, as opposed doing what may be optimal for the disabled student in question.


Separately, there is the almost taboo topic of the current construct's effect on students who are not disabled. Due to funding levels that do not begin to match compliance costs, public schools indirectly transfer literally hundreds of millions of dollars to students who are disabled and their teachers, administrators, attorneys, advocates, and consultants. Many believe this transfer is warranted, but few are aware of its magnitude and, thus, rarely take it into account. A second rarely mentioned and perhaps never measured issue is the efficiency of the time, energy, and money currently devoted to the education of disabled students under current laws and regulations. Put more bluntly, whether we are getting the appropriate bang for the buck? The assumption seems to be the answer must be yes. Though, to my knowledge, the current system of educating disabled students has not been evaluated against alternatives, including the methods used in the increasing number of countries that surpass the United States in the educational achievement of publicly educated students.


My suggestion, as one who is familiar with this area of law, is this: those interested in sharing their thoughts with DOE may wish to suggest that, instead of adding new layers to the current regime, it may be worthwhile to commission an independent analysis of its effectiveness and efficiency. Of course, such a radical approach cuts against the grain of any governmental program. But, after 50 years of travelling this road, it may be worthwhile to pull out a map and figure out where we are and where we’re trying to go.