Section 504 of the Rehabilitation Act of 1973 (the Act) was enacted to secure equal access to public education for students with disabilities. Students with disabilities are guaranteed equal access to free appropriate public education (FAPE) and services in all programs that receive federal financial assistance.
Students with disabilities have the right to receive other “education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met.”
When a student is evaluated and a determination is made that he/she has a disability protected under the Act, a 504 plan is developed and services that would benefit the student are identified and provided. These services are deemed necessary for the student to be able to receive FAPE on par with a student without a disability. Therefore, when students with disabilities are denied access to these services, they are denied FAPE. Requiring parents to home school is not an adequate alternative because while home schooling could be deemed an appropriate education, it does not meet students with disabilities needs in order to be able to receive FAPE when additional services are not provided.
The Act, designed to prevent discrimination against people with disabilities, provides procedural safeguards that a federally funded institution (hereinafter referred to as school) must follow in order to assure that all students have access to FAPE.
When a student with a disability is unable to get services as provided for in his/her 504 plan because he/she is repeatedly sent home early from school, for example, due to a behavioral problem, a complaint can be made that a violation of the Act has occurred. If the student is not in school, he/she is not able to receive services provided for under his/her 504 plan. It follows then, that when students with disabilities are denied services under their 504 plans because they are shut out of school due to their vaccination status, that they are being denied their rights under the Act.
On the other hand, an argument can be made that the Act grants students with disabilities equal and not greater access to FAPE than students without disabilities. Accordingly, if all unvaccinated students, regardless of their disability status, are denied access to FAPE, then it is not discriminatory to deny students with disabilities FAPE which may also include educational services. However, the Act was created to protect the rights of students with disabilities and provides safeguards to protect their interests with regard to access to FAPE. Students without disabilities are not covered under the Act. Accordingly, students with disabilities require greater protection under the law in order to have the opportunity to have access to FAPE.
The Act sets forth,
A school district must conduct or arrange for an individual evaluation at no cost to the parents before any action is taken with respect to the initial placement of a child who has a disability, or before any significant change in that placement.
Denying student’s entrance to school due to their vaccination status would likely be considered action that results in a significant change in placement for students with disabilities because they are potentially kept out of school for a significant period of time. OCR considers an exclusion from the educational program of more than 10 consecutive school days to be a significant change in placement.
The Act provides that a student with disabilities must be evaluated and a 504 plan set in place. The needs of each individual student with disabilities must always be taken into consideration when decisions are made that would affect a student’s access to FAPE.
A decision made even for administrative convenience would be a violation of the Act. For example, if a school, purely for administrative purposes, required students in wheelchairs to leave class early in order to get on a school bus, it would be a violation of the Act because nondisabled students would not have the same early departure requirements. Even when a decision is made for a nondiscriminatory purpose, if it deprives a student with a disability equal access to FAPE, it may be deemed a violation of the Act. Therefore, even if students with disabilities are kept out of school for a reason deemed nondiscriminatory such as their vaccination status, if it denied them access to FAPE, it may be deemed a violation of the Act.
In the same school bus example above, the Act would be violated because all students in wheelchairs would be affected, and each individual student’s needs were not evaluated in making the determination that all students in wheelchairs must leave class early to get on a bus. In the same vein, when a group of students with disabilities are denied entrance to school due to their vaccination status, a blanket decision is being made without taking into consideration each individual student’s best interest with regard to access to FAPE and may be a violation of the Act.
The Act sets forth,
To be appropriate, education programs for students with disabilities must be designed to meet their individual needs to the same extent that the needs of nondisabled students are met. An appropriate education may include regular or special education and related aids and services to accommodate the unique needs of individuals with disabilities.
After it is determined whether it is a violation under the Act to keep students with disabilities out of school due to their vaccination status, the next question is whether they are entitled to receive aids and services as set forth under the Act.
The Act further states,
The quality of educational services provided to students with disabilities must equal the quality of services provided to nondisabled students.” This includes, “an opportunity to participate in nonacademic services that is equal to that provided to persons without disabilities. These services may include physical education and recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, and referrals to agencies that provide assistance to persons with disabilities and employment of students.
The Act provides for health services for students with disabilities to ensure that they are provided with an equal quality of education to that provided to nondisabled students. The health services provided to students with disabilities is not necessarily limited to select services that would allow the student to attend a particular school, rather, it encompasses health services that would benefit the student with disabilities to have access to FAPE.
