A parent, other interested person or organization may file a Section 504 complaint whenever a student with a disability does not receive educational benefit from his instructional program that is equal to that received by his nondisabled peers, as a result of the conduct or policy of the district. This includes the situation where a student with a disability is excluded from participation in any federally funded program or activity, such as public education. [34 C.F.R. Sec. 104.4(a).] Generally, public schools receive federal funding. You must file a discrimination complaint within 180 days from the date of the discrimination, unless the time for filing is extended by the responsible Department official [34 C.F.R. Sec. 100.7(b).]
Disability-related discrimination complaints could include issues related to architectural barriers, “program access” or the failure to implement an agreed upon accommodation plan for a student. In addition, harassment based on a student’s disability is a form of discrimination. Harassment is intimidation or abusive behavior that creates a hostile environment. [See Dear Colleague Letter 111 L.R.P., 45 IDELR 106, (OCR/OCERS 07/25/00).] For a complaint alleging disability-based harassment, OCR requires:
- The student is bullied based on a disability;
- The bullying is so serious that it creates a hostile environment;
- The school officials know or should know about the bullying; and
- The school does not respond appropriately.
[See Dear Colleague Letter, Responding to Bullying of Students with Disabilities, 64 IDELR 115, (OCR 2014).]
A student does not have to have a special education qualifying disability for you to file a discrimination complaint with OCR against the district.
Section 504 complaints may also be filed on behalf of students who are not officially special education students and whose disabilities are not being acknowledged by a school district. This is often the case when a student is excessively suspended for behavioral problems (but is not identified as having a disability) or is suspended for disability-related behaviors. Once a district suspends a non-special education student with a disability for 10 consecutive days or more than a total of 10 days when the suspensions form a pattern due to proximity of suspensions or similarity of the incidents, it must evaluate the student and determine whether the student’s behavior is a manifestation of his disability. [West Contra Costa Unified School District (OCR Region IX, 2004) 42 IDELR 121; Newport-Mesa Unified School District (OCR, Region IX, 2004), 43 IDELR 11; Santa Barbara School District (OCR Region IX, 2004) 43 IDELR 172.]