Protecting Everyone When Chance Events Result in Life-Defining Disabilities
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Dear Colleagues,
Introduction: The Pervasive Impact of Chance
One of my bigger professional roles lately has been as an Expert Witness on federal and other court cases involving school law, special education and disability rights, Title IX and harassment, and situations related to child and adolescent development and mental health.
I have also supported clients whose children have been involved in car accidents or medical procedures that have gone wrong. . . connecting these events to their impact on the children’s learning, social interactions, intervention needs, and post-graduation futures.
As the facts emerge in these latter cases, you realize how “chance events” can significantly impact children and adolescents, and how their entire lives can be dictated by situations that they did not ask for or that were out of control.
I have also been confronted by:
· The limits of my, and others’, expertise;
· The fact that no medical treatment is guaranteed to be successful; and
·
That no one can perfectly predict what a child
will actually be capable of— for example, socially, academically, or
vocationally—in ten or more years when they enter their early-adult lives.
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Significantly, the impact of chance is pervasive.
For example, I have testified in cases where:
· A collision reconstruction expert demonstrated that if—by chance—one of the drivers in a horrific collision had braked instead of unsuccessfully turning to avoid the other car, the accident would not have occurred. . . and the occupants would not have been harmed.
· A student with significant academic needs “lost” another year of quality instruction (the first was during the pandemic) when his certified teacher resigned—by chance—in October, leaving him to be “taught’ by a series of unqualified substitute teachers for the rest of the school year.
· A medical condition. . . that most children recover from with no long-term impact. . . conjoined—by chance—with a child’s hidden genetic predisposition, resulting in an intensification of the condition and devastating academic and mental health outcomes.
· A poor parent decision. . . largely due to her limited educational background and—by chance—life in poverty. . . resulted in her child missing critical early intervention services that could have significantly resolved many of his school and schooling needs (and the legal claims).
Two extended themes, here, are apparent.
First: Life is a probability. Unpredictable events happen in all of our lives, and some events negatively affect our lives for the rest of our lives.
You have the right to blame someone who was present when an unpredictable event occurred (e.g., a doctor or the “other” driver in a car crash), and sue them. . . but “bad things sometimes happen to good people.”
Second: When litigating a case in Court, many of the rules that we live our “regular” lives by do not apply.
Critically, in a court case about education and law, decisions are based on law, and not about education. Court cases involving schools are tried in court. . . the Court retains a procedural “home court” advantage throughout; and the Judge is a judge, not a Principal or Superintendent.
Moreover, the legal system is not about fairness or empathy or what “should have logically happened”. . . it is about (a) lawyers’ legal knowledge and strategies; (b) the application of case law and previous legal decisions and precedents; and (c) judges’ or juries’ analyses of the case and interpretation of law.
Said a different
way, any Plaintiff bringing a case to court is taking a calculated risk.
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Disability Law: The Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973
Two federal laws protect virtually all Americans from chance. . .
. . . specifically, from the chance of being born with, acquiring, or experiencing a disability.
These “birth to death” civil rights laws are Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA; 1990).
Signed into law on September 26, 1973 by President Richard Nixon, Section 504 prohibits discrimination on the basis of a disability by public or private programs that receive federal funds. This includes public schools, colleges, and universities.
As such, the law ensures that students with disabilities have equal access to education, providing—as needed—accommodations, modifications, and supports.
Section 504 also covers employment, focusing again on employers who receive federal funds—requiring them to provide reasonable accommodations to employees with disabilities.
Signed into law on July 26, 1990 by President George H.W. Bush, the ADA has a broader scope than Section 504. It applies to all aspects of life in both the public and private sectors.
Covering employment, transportation, public services and access, state and local government services, and telecommunications, the ADA makes it unlawful to discriminate against a qualified individual with a disability.
Title I of the ADA addresses employment, requiring employers with 15 or more employees to provide reasonable accommodations to qualified employees with disabilities, unless it causes undue hardship.
Title III of
the ADA covers public accommodations and services operated by private entities,
such as restaurants, hotels, and theaters, ensuring access and
non-discrimination.
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Using Section 504 as an Expert Witness
Relative to my Kindergarten through Grade 12 Expert Witness cases, I—along with most K through 12 districts—have a much higher probability of using Section 504 than ADA.
So, let’s do a deep dive and provide some additional information on this law.
Section 504 of the Rehabilitation Act of 1973, as noted, is a civil rights law that prohibits
discrimination against individuals with disabilities in programs and activities
that receive federal financial assistance. This includes schools, hospitals,
and other public services that receive federal funds.
The law ensures that people with disabilities have
equal access to education, healthcare, and other services, and that they are
not excluded from or denied the benefits (such as access to learning) of any
program or activity that, as noted earlier, receives federal funding.
In May 2024 (implemented in July 2024), the U.S.
Department of Health and Human Services (HHS) updated the rules under Section
504 to provide stronger protections. For example, they now include requirements
for schools to provide students with disabilities accessible websites, mobile
applications, and other digital platforms; and for hospitals to provide sign
language interpreters and accessible medical equipment.
These updates also better aligned Section 504 with the
ADA.
Significantly, Section 504 adopted—with the addition
of long COVID and a broader range of impairments—the ADA’s 2008 amended
definition of “disability.” Impairments include those that are both chronic and
temporary.
Section 504’s definition of a disability continues to
be broad as its goal is to ensure that individuals with disabilities receive
the protections they need.
Section 504 defines disability as “a physical or
mental impairment that substantially limits one or more of the major life
activities of such individual; a record of such an impairment; or being
regarded as having such an impairment.”
The May 2024 update continues to define “major life
activities” as in previous versions, but some clarifications and expansions
were made to ensure consistency with the ADA. The Life Activities that apply—regardless
of age—include: Caring for oneself, Walking, Seeing, Hearing, Speaking, Breathing,
Working, Performing manual tasks, Learning, Concentrating, and Eating.
For school-aged students, Section 504’s major life
activities include those listed above, as well as those essential for daily
functioning and participation in the school and schooling process and
environment. Additional activities, therefore, include: Thinking, Reading,
Writing, and Communicating.
Eligibility assessments determine if a student has a
disability that substantially limits one or more of these functions and needs
accommodations or supports under Section 504.
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Moving On: For students, Section 504 ensures that
individuals with disabilities receive equal access to education and other
services. Some examples of disabilities that qualify under Section 504:
· Learning disabilities (e.g., dyslexia, ADHD)
· Mental health conditions (e.g., anxiety, depression)
· Chronic illnesses (e.g., asthma, diabetes, epilepsy)
· Physical impairments (e.g., mobility impairments,
missing limbs)
· Sensory impairments (e.g., vision or hearing problems)
These
conditions must significantly limit one or more major life activities, such as
learning, working, or communicating.
For adults, some Section 504 disabilities might include:
·
Mental Health
Conditions: Conditions such as
anxiety disorders, depression, bipolar disorder, and PTSD.
·
Chronic
Illnesses: Conditions like diabetes,
arthritis, multiple sclerosis, and chronic fatigue syndrome.
·
Physical
Impairments: Mobility impairments,
arthritis, spinal cord injuries, or missing limbs.
·
Sensory
Impairments: Vision impairments
(including blindness), hearing impairments (including deafness), or speech
impairments.
· Neurological Disorders: Conditions like epilepsy, migraine headaches, or traumatic brain injury (TBI).
These conditions must significantly limit one or more
major life activities, such as working, walking, seeing, hearing, or caring for
oneself.
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Section 504 provides several key protections for
individuals with disabilities.
Among the main protections for students are:
Reasonable Accommodations: Schools and other entities must provide reasonable
accommodations to ensure that individuals with disabilities have equal access
to their programs and activities. This can include things like providing extra
time on tests, offering sign language interpreters, or making buildings
accessible. Past “model” 504 Accommodation manuals included those from the
Colorado and Ohio State Departments of Education, and from the Council of the
Chief State School Officers (CSSO).
504 Plans:
For students with disabilities, Section 504 requires the development of 504 Plans
that outline the specific accommodations and support services needed to help
them succeed in school. For students with special education IEPs, needed
accommodations are written into these Individual Education Plans.
Accessibility:
Entities must ensure that their facilities and services are accessible to
individuals with disabilities. This can include making physical modifications
to buildings, providing accessible medical equipment, and ensuring that
websites and digital content are accessible.
Equal Opportunity: Section 504 ensures that individuals with disabilities have the same
opportunities to participate in programs and activities as those without
disabilities. Accommodations are the primary vehicle toward ensuring that
students with disabilities have equal access to educational programs, learning
opportunities, and extracurricular activities.
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Section 504 provides protections for adults in various
settings, including employment, education, and access to public services. These
protections ensure that adults with disabilities are not discriminated against,
and have equal opportunities to participate in programs and activities that
receive federal funds.
Among the main 504 protections for adults are:
Employment: At
their employment sites, adults with qualifying disabilities must receive
reasonable accommodations from their employers to include modifications to the
work environment, flexible work schedules, or assistive technology.
Education:
Adults with disabilities have the right to access educational programs and
services. This includes accommodations in higher education institutions and
vocational training programs.
Public Services:
Public services, such as transportation and healthcare, must be accessible to
individuals with disabilities. This can include providing accessible medical
equipment, sign language interpreters, and ensuring that facilities are
physically accessible.
These protections help ensure that adults with
disabilities can fully participate in society and access the same opportunities
as those without disabilities.
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A Current Legal Wolf Attack on Section 504
In September 2024, just months after the July 2024 implementation of the revised Section 504 rules, the Attorney General of Texas Ken Paxton filed a lawsuit in the United States District Court (Northern District of Texas, Lubbock Division) against then-Secretary of the U.S. Department of Health and Human Services Xavier Becerra.
This lawsuit now includes 16 other State Attorney Generals, and its focus is on Section 504.
The “surface level” concern is the inclusion of “gender dysphoria” as “a physical or mental impairment” in the May 2024 updating of the Section 504 definition of “disability.” In fact, the legal brief filed by Paxton (Texas v. Becerra) spends over 30 pages legally contesting the main argument that the “HHS has no authority to unilaterally rewrite statutory definitions and classify 'gender dysphoria' as a disability."
My issue here is not to debate the definition of “gender dysphoria,” the legal cases used by the Biden Administration to defend its inclusion in the Section 504 update, or its designation as a disability.
My issue here is that, in his legal brief, Paxton included not only the striking of gender dysphoria as a disability, but an additional claim (Count III on Page 37) also arguing for the entire elimination of Section 504.
Here, the lawsuit argues that Section 504 is “coercive, untethered to the federal interest in disability, and unfairly retroactive” and therefore is unconstitutional
Regardless of the recent public appeasements from several of the Attorney Generals who officially included their states in this lawsuit (Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia), the goal is clearly delineated in the lawsuit.
Specifically, the fourth item in the lawsuit’s “Demand for Relief” says, “Declare Section 504, 29 U.S.C. § 794, unconstitutional.” This is followed by: “Issue permanent injunctive relief against Defendants enjoining them from enforcing Section 504.”
Talk about a “Wolf in Sheep’s Clothing.”
If this lawsuit is
successful—legal briefs are due in Court by February 25—Section 504, and all of
its protections and equal access civil rights protections, would cease to
legally exist for individuals with disabilities. This would eliminate the civil
rights of students with eligible disabilities to receive 504 Plans with the
accommodations that give them equal access to the same educational settings and
opportunities as any non-disabled student.
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Any Chance Event Can Result in a Disability: Protecting Everyone’s Best Interests
During the 2020 to 2021 school year (using the most-current data from the Civil Rights Data Collection bank), there were 1.6 million students with disabilities—ages 3 to 21—served only by Section 504. (This number does not include students with disabilities who did not have 504 plans yet were receiving accommodations on their IEPs.)
Coincidentally, upwards of 1.6 million Americans have died, to date, from COVID-19.
Doubling back to the beginning of this Blog, these students are disabled largely due to chance events. They did not ask to be born with a disability, or to experience some tragic, chance event such that they became disabled.
But critically, in some of my Expert Witness cases, the children involved were not the only ones to be harmed.
Indeed, the parents involved in the chance events also incurred physical and other disabilities that impacted their employability and quality of life.
But they are all protected by the ADA and Section 504.
And so, if by some awful chance occurrence, you (or, your children) were disabled tomorrow, you too would be protected by the ADA and Section 504.
Closing Points:
· As discussed earlier, Section 504 provides some protections that the ADA does not.
· If Texas v. Becerra fully succeeds, after more than 50 years in existence, 1.6 million current students. . . innumerable future students. . . and potentially, you and your children. . . would lose Section 504’s civil rights guarantees.
· If the inclusion of “gender dysphoria” in the current rules was a legal over-reach, then the 17 Attorney Generals have the right to petition the Court to correct that mis-step.
·
But this inclusion does not warrant 17 Attorney
Generals to “take off their sheep’s clothing” to artificially link gender
dysphoria with a conscious scheme to totally eliminate Section 504 because, in
their opinion, it is suddenly unconstitutional.
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Post-Script
On January 9, 2025, a federal judge in Kentucky stuck down the Biden administration’s Title IX rules expanding protections for LGBTQ+ students because, according to the ruling, the President overstepped his authority.
In taking this action, the Judge took down the entire 1,500-page updated 2024 regulation in a ruling that (a) will impact all schools nationwide, because (b) it will not be contested given the new Administration in Washington, D.C.
But, critically, this still leaves the previous 2020 version of Title IX in force.
If the inclusion of gender dysphoria in Section 504 was a similar overstep, then strike it down.
But, in parallel, leave the rest of Section 504 intact.
This is only right. . . it is a legal, civil rights, and quality of life necessity. . . to protect all of us from chance events.
Taking Action:
If you agree and want to take action, I suggest that you contact your Governor and State Attorney General right now to express your opinion.
If you live in one of the 17 states that filed the legal brief, perhaps your Attorney General will withdraw the Fourth Plea in the lawsuit.
If you live in a
different state, perhaps your Attorney General will join with others to contest
this Plea.
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Summary
This Blog began by discussing the realization that, as an Expert Witness in school-related court cases nationwide, some cases involve chance events that impact students’ lives for the rest of their lives. These events—for example, birth traumas, accidents, medical errors, sports injuries—have left the students disabled, and these disabilities impact their ability to concentrate, read, write, communicate, and learn.
We then discussed two relevant civil rights laws: Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. We focused especially on Section 504 and how it prohibits discrimination on the basis of a disability by public or private programs receiving federal funds. We described Section 504’s definition of a disability, examples of the life events the disability must impact, and the accommodations required so that students (and adults) have equal access to educational programs, learning opportunities, and extracurricular activities.
We next discussed a current federal court case Texas v. Becerra, filed in Texas by 17 State Attorney Generals, which is contesting the Biden Administration’s 2024 revision of the Section 504 rules to include “gender dysphoria” as a disability. The critical issue is that the lawsuit seeks not only to eliminate gender dysphoria, but to find the entire Section 504 law unconstitutional.
Noting that Section
504 protects all Americans from chance life events that result in a disability,
we issued a Call to Action to have the unconstitutionality plea in the lawsuit
stricken so that students (and others) with disabilities will continue to
receive 504’s accommodations and other related protections.
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The “Improving Education Today” Podcast: A New Professional Development Resource Complementing this Blog
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I hope to hear from you soon.
Best,
Howie
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