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(8.20) What rights do I have if I disagree with the Section 504 determination about my child’s behavior?

(8.20) What rights do I have if I disagree with the Section 504 determination about my child’s behavior?

If you disagree with the determination that the behavior is not related to the student’s disability — or with the placement proposal in those cases where the behavior is determined to be caused by the disability — you may request a Section 504 hearing. The regulations require that the hearing be impartial, and that parents have the opportunity to participate and be represented by counsel. [34 C.F.R. 104.36.] Unlike special education disciplinary procedures, each school district establishes its own Section 504 hearing procedures. The school district alone chooses a hearing officer to make a decision on the disagreement.  OCR has stated that employees and board members of your district may not serve as hearing officers. If another district shares a contract with your district to provide services to students with disabilities, its employees are also prohibited from serving as hearing officers. [Letter to Anonymous,18 IDELR 230 (OCR 1991).]

There is another important distinction between special education and 504 discipline procedures.  Unlike the IDEA discipline procedures, the Section 504 procedures do not have a “stay put” provision. Therefore, a Section 504 student’s placement could be changed or he could be expelled while the Section 504 hearing is still pending. However, OCR has suggested that changing a student’s placement before the parent has challenged the decision “seems to undermine the rights given by due process,” and that a “fair due process system would encompass the school district waiting for the results of the process before making the change”. [Letter to Zirkel,22 IDELR 667(1995).]

If the behavior is related to the current use of alcohol or illegal drugs, school districts may take disciplinary action against a student with a disability to the same extent that it takes disciplinary action against persons not having disabilities. The due process procedures discussed above do not apply when disciplinary actions are due to the current use of illegal drugs or alcohol by students with disabilities. [29 U.S.C. Sec. 705(20)(C)(iv).]