Our recent series on § 504 and special education examined the recent changes in the Americans with Disabilities Act, which automatically change provisions of §504. These changes were mentioned by multiple speakers on my summer rock tour for special education law.
One person who I asked about this was my buddy and mentor Art Cernosia. Art and I grew up about ten miles from each other in Chicago, but we didn't meet until he was in Vermont and I was in West Virginia. He is now one of the national authorities on special ed law. I wondered what he thought of Professor Webber's prediction that 504 would be seeing more action because of the IDEA eligibility tightening.
Art said that he thought that § 504 would not see much of an increase in activity. He believes that the anti-discrimination nature of the 504 FAPE requirement would be less attractive still to parents than the more fully defined IDEA FAPE requirement.
Also, he pointed out that the exhaustion requirement is being applied increasingly by the courts to §504 actions. In other words, courts are requiring parents who file 504 suits to first exhaust their administrative remedies by pursuing a due process hearing under IDEA with the state education before proceeding to court. This exhaustion requirement, he feels, will make it likely that parents will continue to file both IDEA and 504 claims together rather than 504 in lieu of IDEA.
So what do you think will §504 replace IDEA as the special education law of choice?