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Section 504 and the ADA in Special Education Cases

Section 504 and the ADA in Special Education Cases. Mark C. Weber DePaul University College of Law October 27, 2010. The Context. Diminishing IDEA Eligibility Expanded 504-ADA Coverage per ADAAA. Issues to Consider. Increasing Coverage Under ADAAA

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Section 504 and the ADA in Special Education Cases

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  1. Section 504 and the ADAin Special Education Cases Mark C. Weber DePaul University College of Law October 27, 2010

  2. The Context • Diminishing IDEA Eligibility • Expanded 504-ADA Coverage per ADAAA

  3. Issues to Consider • Increasing Coverage Under ADAAA • Section 504-ADA Duties for Covered Children • Possible Defenses to 504-ADA Claims • Remedies Under 504-ADA

  4. Expanded Coverage Under ADAAA • Physical or Mental Impairment that Substantially Limits Major Life Activity • Sutton Trilogy & Toyota • But: Charlie F., etc.

  5. ADAAA Provisions • Construed in Favor of Broad Coverage • “Primary Object of Attention” • Episodic Impairments & Remission • Mitigating Measures • Major Life Activities, Including Bodily Functions • Broader “Regarded-As” Coverage • All IDEA-Eligible Children Now Covered?

  6. Duties Under 504-ADA • Comparison to IDEA & Rowley • Meeting Needs “as Adequately” as Needs of Others Are Met • Mark H. • Lyons • Letter to Zirkel • Higher or Lower than IDEA, or Both? • Practicality?

  7. Validity of the Regulation • Chevron Standard • Judicial Enforceability

  8. Duties to Dually Eligible Children • Is Rowley a Ceiling as Well as a Floor? • IDEA Is Not an Exclusive Remedy • Impact of the “[IDEA] IEP . . . Is One Means of Meeting” Regulation

  9. Additional 504-ADA Duties • Exclusion, Segregation, Harassment • Procedural Protections • Student Discipline Protections

  10. Exhaustion Defenses • 20 USC 1415(l) • Exhaustion Required for IDEA-Ineligible Children?

  11. Remedies • Placements, Compensatory Education, Tuition Reimbursement, etc. • Attorneys’ Fees • Expert Witness Fees

  12. Source • Mark C. Weber, A New Look at Section 504 and the ADA in Special Education Cases, Texas Journal on Civil Liberties and Civil Rights (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636483

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