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Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 (“Section 504”) is a Congressional directive to schools receiving any federal funding to eliminate discrimination based on disability from all aspects of school operations. For a student to qualify for Section 504 protection the student must meet three criteria, which are (1) A mental or physical impairment (or has a record of an impairment or is regarded as having an impairment), (2) which substantially limits, (3) one or more major life activities.

Illegal Drug Use

Section 504 was amended in 1990 to provide an exclusion from eligibility for individuals currently engaged in the illegal use of drugs. Under Section 504, a student who is engaged in the illegal use of drugs is not considered a qualified individual with a disability and, thus, is not eligible under Section 504. (29 USC 705 (20)(B); Letter to Zirkel, 22 IDELR 667 (OCR 1995). Since a student who is currently engaging in the use of illegal drugs is not considered a student with a disability under Section 504, that student can be disciplined in all instances under the LEA’s regular code of student conduct discipline procedures, even if the student has a drug addiction, so long as the LEA can show that the student who is disabled by conditions other than drug or alcohol abuse is currently using such substances. Note that such an exclusion does not apply to students with IEPs.

Illegal Drug Possession

Possession of illegal drugs does not result in a loss of protections unless the handicapped student is also currently using drugs or alcohol. For example, if a school finds illegal drugs in the locker of a student with ADHD, they may discipline that student as if he had no handicap only if the school can also show that the student is currently using drugs. Otherwise the school must provide procedural protections to determine, among other things, whether the misbehavior was a manifestation of the handicap. (Staff Memorandum, 17 IDELR 609 (OCR 1991)) In circumstances where a significant change of placement is under consideration, such as expulsion, pre-change of placement evaluation would also be required.

Alcohol

A student with alcoholism may be eligible for protection and services under Section 504 if his impairment substantially limits one or more major life activities. Pinellas County (FL) Sch. Dist., 20 IDELR 561 (OCR 1993) establishes eligibility under Section 504 on the basis of addiction to alcohol where parents presented evidence that the student's addiction to alcohol was a mental disability requiring psychological treatment and the student's ability to perform major life activities was substantially limited when he was under the influence of alcohol.

While the language of 29 U.S.C. 705(20)(C)(iv) does not specifically reference alcohol use, the Office of Civil Rights (“OCR”) addressed the issue in Staff Memorandum, 17 IDELR 609 (OCR 1991). OCR broadly interpreted the code as applying to drugs or alcohol, finding that a student currently engaged in the use of alcohol is not protected under Section 504 when the disciplinary actions are based on the student’s current use of alcohol.

Pinellas County (FL) Sch. Dist., 20 IDELR 561 (OCR 1993), upheld the expulsion of a student for alcohol-related offenses that occurred on the school campus. Even though OCR agreed with the parents that the student's misconduct was disability-related, it determined that a student who is currently using alcohol can be disciplined in the same manner as any other student, regardless of whether that student is disabled on the basis of alcoholism.

Procedural Safeguards

A 504 team must conduct a manifestation determination whenever a disabled student is subject to a significant change of placement. Clearly, expulsions qualify but what about suspensions or an Education Code section 48911(g) long term extension of suspension pending completion of the expulsion proceedings? Proper procedural protections in the case of expulsion or a 48911(g) extension of suspension would include a pre “significant change of placement” evaluation and manifestation determination. However, as noted above, the aforementioned procedural protections that are normally in place when a 504 student has a discipline related change of placement do not apply when the misconduct involves the current use of illegal drugs or alcohol. (29 U.S.C. 705(20)(C)(iv)). For instances of current use, the student is not considered a student with a disability under Section 504 and can be disciplined under the regular code of student conduct.