Toolbox Tuesday: Let’s talk about 504….

Our firm’s Toolbox training is based on IDEA and its regulations pertaining to the discipline of students with disabilities. What about the kids who are covered by a 504 plan?

The short answer to that is that discipline standards under 504 are very similar to the discipline rules under IDEA. However, there are a few specific distinctions. One of those involves alcohol. Section 504 includes a specific section that addresses the topic:

For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34 CFR (or any corresponding similar regulation or ruling) shall not apply to such disciplinary action. 29 U.S.C. 705(C)(iv).

In short, with regard to alcohol, as long as the school treats the student with a 504 plan as it would a general education student, the school has not violated Section 504.

This was the decisive factor leading to the dismissal of a student’s suit against a charter school located in Katy. The school expelled the student for possession and consumption of alcohol while at school. The student sued, alleging disability discrimination. The court tossed it out, citing the portion of the statute quoted above. It’s W.G. v. Aristoi Classical Academy, decided by the federal court for the Southern District of Texas on March 23, 2023. It’s published by the Individuals with Disabilities Education Law Reporter at 1123 LRP 13352.

IDEA does not directly address alcohol, but it does include drug possession or use as one of the “special circumstances” that the Toolbox identifies as Tool #5. IDEA does not allow schools to treat the student with drugs as it would any other student. There must be an ARD meeting and a manifestation determination. However, since drugs create a “special circumstance” the school is authorized to remove the student to an IAES (Interim Alternative Educational Setting) for up to 45 school days regardless of the outcome of the MDR.

So with regard to 504, the starting point is that discipline is very much like it is under IDEA. But there are a few distinctions, as this case illustrates.


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Tomorrow: 4th Circuit on special ed…