QUESTION: My child has been found eligible for accommodations under §504 of the Rehabilitation Act for severe breathing problems related to asthma induced by various airborne allergens and chemicals. His §504 Plan calls for his classrooms to be sanitized daily and to be free of chemicals. This year I found out that before school started his room was chemically treated for an insect infestation and I was told not to bring my son to school for a week. They did offer home tutoring, which I refused. What can I do?
 
ANSWER: §504 is an anti-discrimination law that protects students and staff that have a disability that meet the statute's definition of a "handicapped person". According to the law a handicapped person is: any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. Here, it would appear that the impairment is the physical impairment of asthma. This is straightforward if the school agrees that the disability "substantially limits", here the school agreed that his asthma substantially limits his ability to breath (e.g. a life function), and that that limitation negatively affects his education. When they do not agree, then the school's decision may have to be appealed.
 
In terms of denying participation, §504 states that: "No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance." Further §504 requires a school to provide a "reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity." As with any legal matter, without all the facts (for example how severe and widespread was the insect infestation and what was the potential damage to the students and to the buildings) it is impossible to weight the school's actions against any standard. While a non-discriminatory solution may be for the school to provide temporary educational services in another school so that the student will not lose educational opportunity. I would also ask for transportation services.
 
Whenever it can be properly claimed that a school acted in violation of §504, there may be a private right of action for actual damages. Of course, any refusal to accept services, albeit inferior services, can be a factor in deciding damages. Also, in many parts of the country the federal court may require a parent to pursue an administrative IDEA type due process hearing before the court will take up the complaint. While such a hearing cannot award money damages, it can award injunctive and declaratory relief, as well as compensatory educational services. It also allows the educational establishment to apply its expertise and it creates a hearing record for the court to review. A parent can also file a complaint with their regional federal Office for Civil Rights (OCR is part of the federal Department of Education). If the complaint has validity, and is filed within the 180-day time limit, OCR will investigate the complaint at "no charge". While OCR will generally not award a student damages for past discrimination, if a complaint is found valid OCR will order individual and district wide corrective action.
 
John F. Brower, JD
Education Law Center, PLLC
www.edlawcenter.com

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