Monitoring Achievement for Students with Disabilities

Section 504 does not require schools to provide an Individualized Education Program (IEP), including present levels of performance, measurable annual goals, and specially  designed instruction to meet a child's unique needs.  However, given what the Supreme Court has stated on two separate occasions regarding what constitutes FAPE under IDEA, the absence of an IEP requirement in Section 504 may not be as significant as it may seem  to be at first glance. 

The Supreme Court, in its landmark Rowley decision (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, (1982)), determined that IEPs must only provide a child with some educational benefit and do not have to maximize the child's potential.  The Court found that "A 'free appropriate public education' consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from instruction . . ."  The Rowley standard was clarified, but not replaced,  by the Court in its 2017 Endrew F decision (Endrew F. v. Douglas County School District Re-1, 137 S.Ct. 988). In this decision, the Court determined that FAPE under IDEA only requires "an individual program that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances." 

What IEP goals, objectives, and specially designed instruction address is often assumed to be much more than they actually do.  IEP goals and objectives usually only address students' need to improve isolated, very specific academic skills.  Only rarely do IEP goals and objectives address students' general educational achievement relative to academic content standards.  IEP goals and objectives are better than nothing.  But they are too often not written so as to insure that the individual educational needs of handicapped students are met as adequately as the needs of their nonhandicapped peers are met.

Along with not requiring an IEP, Section 504 regulations do not require progress monitoring of educational achievement. Unless there is some valid, ongoing comparison of the academic achievement of children with disabilities to the achievement of their non-disabled peers, it cannot be determined if "the individual educational needs of handicapped persons" are being met "as adequately as the needs of nonhandicapped persons are met?" However, the absence of progress monitoring in Section 504 regulations, and the frequent lack of academic content standard goals in IEPs can be addressed.  This can be done by combining the protection contained in Section 504 with the accountability provisions of the Every Student Succeeds Act of 2015 (ESSA).  The ESSA requires annual statewide assessments.  By using individual and group data from ESSA, in addition to local progress monitoring, schools can be held accountable to ensure that children who are eligible and qualify under Section 504, including those who are under an IEP, not only have their needs to be able to access to the general education curriculum met as adequately as the needs of nonhandicapped persons, but also have their need to in fact learn what is in it met as well as the need of  their nonhandicapped peers to do so! . 

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Note:  Millwood Group LLC is not a law firm and does not provide legal advice or legal services.