The limits of Section 504

Should you provide a 504 plan to a student before making a referral for a special education evaluation?  A recent decision from the 5th Circuit sheds light on this common dilemma. 

The case was about a 5th grade boy with behavioral issues.  Here’s how the court described what happened on the second day of the school year: 

[The student] held up his middle finger, used obscenities, and refused to follow directions.  When administrators came to the classroom to assist the teacher [the student] who was sitting on a bookshelf and refusing to come down, hurled insults laced with pejorative, vulgar, and racist terms.  He then moved on from hurling words to hurling objects, throwing writing utensils at the assistant principal.

This was not an isolated incident.  By early October, the court noted, the boy was interrupting classes daily. The parents had already told the school about the boy’s behavioral issues, some diagnoses that he carried, and had put school officials in touch with professionals in the private schools the boy previously attended.   In other words, the school was on notice that the boy had significant behavioral issues that needed attention. 

The district offered a 504 plan on October 8th.  By mid-January, when things had not improved much, the district made a referral for a special education evaluation.   When the parties ended up in court, the parents argued that the district waited too long to make the referral, thus violating the Child Find duty. The district defended its decision by pointing out that it did not just sit back and do nothing—it implemented the 504 plan. 

The 5th Circuit ruled that the district waited too long, and in doing so, laid down some important markers for the proper and improper use of Section 504.  Key Quote:

We in no way suggest that a district necessarily commits a child find violation if it pursues RTI or Section 504 accommodations before pursuing a special education evaluation.  We instead recognize that determining whether a child find violation occurred is a fact-intensive inquiry and highlight that Section 504 accommodations are not a substitute for an evaluation once a school district is “on notice of acts or behavior likely to indicate a disability.”  (Emphasis in the original).

The court cited a 3rd Circuit case in which the court held that a school acted properly by trying 504 accommodations prior to referring for a special education evaluation.  But, as the court noted, the school was seeing only mild behavior issues.  The 3rd Circuit described the student’s behavior as “typical of boys his age.”  The boy in Spring Branch, on the other hand, was not a typical 5th grader:

By the time the Section 504 meeting occurred on October 8, 2014, [the student] had repeatedly drawn violent pictures depicting murder, death, and anti-Semitic images; used incredibly vulgar language and made lewd gestures in the middle of the classrooms; disrupted class by yelling obscenities; hurled racial slurs and other derogatory insults at the principal, teacher, and fellow students; refused to follow directions or even remain in the classroom; thrown crayons at the teacher; and engaged in other forms of misconduct that resulted in him being removed from the classroom on a daily basis.  (Emphasis in the original).

Don’t abandon Section 504.  It has its place. But when you see evidence of severely disturbing behavior, along with some indication that a disability might be present, there should be no delay in going to a special education referral.  Keep in mind that a school can begin the evaluation process and implement 504 accommodations at the same time.  Beginning that evaluation process is what fulfills the Child Find responsibility. 

The case is Spring Branch ISD v. O.W., decided by the 5th Circuit on June 12, 2020.  We found it at 2020 WL 3118754.  The court issued this opinion in response to the district’s Motion for Rehearing after the court’s original decision, which also went against the district.  This opinion is not much different from the original, but the discussion of Section 504 is one place where the court amended the original decision. 


Tomorrow: Heard any good jokes lately?