What is the “major life activity” you are worried about? Ask that question first

A recent federal court case involving a Texas district demonstrates the risks of using Section 504 to serve a student who shows signs of a problem with learning.  Learning is the province of IDEA, and the failure to move promptly in that direction can have negative consequences.    

Let’s review some basics about 504.  It covers any and all physical or mental impairments that substantially impair a person in a major life activity.  Obviously from that definition, 504 covers students who are eligible for special education, but also many others.  This case illustrates how risky it is to rely on 504 to serve students whose “physical or mental impairments” impact learning.  504 is the proper remedy for students with physical or health related impairments. But when the impairment affects reading fluency and/or the more general area of learning, why mess around with 504? To do so risks a finding that the district violated Child Find duties.

The court affirmed a ruling by the hearing officer that the district moved too slowly toward a special education referral, thus violating the Child Find duty. The court relied on findings made by the student’s 504 team, which indicated that the “major life activity” of concern was learning.  Based on that, the court concluded: you should have known this kid was a candidate for special ed.  Key Quote:

In D.C.’s 4th grade Section 504 plan….D.C. was found to have a mental impairment that substantially limited his ability to read, concentrate, learn, and think, and the plan specifically noted that D.C. had “secondary characteristics of dyslexia….

The court also noted similar language in the 3rd grade 504 plan. Our law firm has long recommended that when considering a student for 504 services the evaluation team should ask about the “major life activity” at the beginning of the process, not the end.  Consider possible scenarios:

Jennifer has asthma. The major life activity of concern is breathing. Carlos must use a wheelchair. The major life activity of concern is walking. D.C. is falling behind in reading.  The major life activity of concern is reading, thinking, learning.

That’s exactly what happened in D.C. v. Klein ISD, decided by the federal court for the Southern District of Texas on May 29, 2020.  We found it in Special Ed Connection at 76 IDELR 208.  We’ll talk more about this case on Wednesday.


Tomorrow: Toolbox Tuesday!!