### OFFICE OF THE ASSISTANT SECRETARY

DEC 26, 2007

Dear Colleague:

I am writing to advise you of an issue involving students  with disabilities seeking enrollment in challenging academic programs, such as  Advanced Placement and International Baccalaureate classes or programs  (accelerated programs).  Specifically, it  has been reported that some schools and school districts have refused to allow  qualified students with disabilities to participate in such programs.  Similarly, we are informed of schools and  school districts that, as a condition of participation in such programs, have  required qualified students with disabilities to give up the services that have  been designed to meet their individual needs.   These practices are inconsistent with Federal law, and the Office for  Civil Rights (OCR) in the U.S. Department of Education will continue to act  promptly to remedy such violations where they occur.

As you know, OCR is responsible for enforcing  two Federal laws that protect qualified individuals with disabilities from  discrimination. OCR enforces Section 504 of the *Rehabilitation Act of 1973* (Section 504) and its implementing regulations at 34 CFR Part 104, which  prohibit discrimination on the basis of disability in programs or activities  receiving Federal financial assistance.   OCR is also responsible, in the education context, for enforcing Title  II of the *Americans with Disabilities Act of 1990* (Title II) and its  implementing regulations at 28 CFR Part 35, which prohibit discrimination on  the basis of disability by entities of State and local government.  Although this letter discusses aspects of the  Section 504 regulation, Title II provides no lesser protections than does  Section 504.  Also relevant are the  requirements of the *Individuals with Disabilities Education Act* (IDEA),  which is administered by the Department’s Office of Special Education Programs  (OSEP).  The *IDEA* provides funds  to States and school districts in order to assist them in providing special  education and related services to eligible children with disabilities.  The *IDEA*’s implementing regulations  are located at 34 CFR Part 300.  OCR  consulted with OSEP in drafting this letter.**1**

As an initial matter, I want to commend the  efforts so many of you have made to ensure that placement decisions for all  students are based on each student’s individual academic abilities regardless  of the presence, nature, or severity of a disability.  I want to ensure that all of you are aware of  the Federal civil rights requirements discussed below.

## **Prohibition  Against Disability-Based Discrimination in Accelerated Programs**

The  practice of denying, on the basis of disability, a qualified student with a  disability the opportunity to participate in an accelerated program violates  both Section 504 and Title II.   Discrimination prohibited by these laws includes, on the basis of  disability, denying a qualified individual with a disability the opportunity to  participate in or benefit from the recipient’s aids, benefits, or services, and  affording a qualified individual with a disability with an opportunity to  participate in or benefit from the aid, benefit or service in a manner that is  not equal to that offered to individuals without disabilities.  34 CFR 104.4(a), (b)(1)(i), (b)(1)(ii); 28  CFR 35.130(a), (b)(1)(i), (b)(1)(ii). 

Under Section 504 and Title II, a recipient may not utilize criteria or  methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the  basis of disability.  34 CFR 104.4(b)(4) and 28  CFR 35.130(b)(3).  A public entity also  may not impose or apply eligibility criteria that screen out or tend to screen  out an individual with a disability or any class of individuals with  disabilities from fully and equally enjoying any service, program, or activity,  unless such criteria can be shown to be necessary for the provision of the  service, program, or activity being offered.   28 CFR 35.130(b)(8).  Public  school students with disabilities who require special education and/or related  services receive them either through implementation of an individualized  education program (IEP) developed in accordance with Part B of the *IDEA* or a plan developed under Section 504.   34 CFR 104.33.  It is unlawful to  deny a student with a disability admission to an accelerated class or program  solely because of that student’s need for special education or related aids and  services**2**,  or because that student has an IEP or a plan under Section 504.  The practice of conditioning participation in  an accelerated class or program by a qualified student with a disability on the  forfeiture of special education or of related aids and services to which the  student is legally entitled also violates the Section 504 and Title II  requirements stated above. 

Please  note that nothing in Section 504 or Title II requires schools to admit into  accelerated classes or programs students with disabilities who would not  otherwise be qualified for these classes or programs.  Generally, under Section 504, an elementary  or secondary school student with a disability is a qualified individual with a  disability if the student is of compulsory school age.  However, schools may employ appropriate  eligibility requirements or criteria in determining whether to admit students,  including students with disabilities, into accelerated programs or  classes.  Section 504 and Title II  require that qualified students with disabilities be given the same  opportunities to compete for and benefit from accelerated programs and classes  as are given to students without disabilities*.*  34 CFR 104.4(b)(1)(ii) and 28 CFR  35.130(b)(1)(ii).

Furthermore, a recipient’s provision of necessary special  education and related aids and services to qualified students with disabilities  in accelerated classes or programs must be consistent with the Section 504 and  Title II requirements regarding free appropriate public education (FAPE).

## **Free Appropriate  Public Education**

In general, conditioning participation in accelerated  classes or programs by qualified students with disabilities on the forfeiture  of necessary special education or related aids and services amounts to a denial  of FAPE under both Part B of the *IDEA* and Section 504.

Section 504 requires a recipient that operates a public  elementary or secondary education program or activity to provide FAPE to each  qualified person with a disability who is in the recipient’s jurisdiction,  regardless of the nature or severity of the person’s disability.  34 CFR 104.33(a).  Under Section 504, the provision of an  appropriate education is the provision of regular or special education and  related aids and services that satisfy certain procedural requirements and that  are designed to meet the individual education needs of persons with  disabilities as adequately as the needs of persons without disabilities are  met.  34 CFR 104.33(b)(1)(i).  School districts may create a plan or other  document to provide students with disabilities with FAPE pursuant to Section  504.  The Section 504 FAPE requirement  may also be met through the implementation of an IEP developed in accordance  with Part B of the *IDEA*.  34 CFR  104.33(b)(2).

*IDEA*
*IDEA*
**3**

Participation by a student with a disability in an  accelerated class or program generally would be considered part of the regular  education or the regular classes referenced in the Section 504 and the *IDEA* regulations.  Thus, if a qualified  student with a disability requires related aids and services to participate in  a regular education class or program, then a school cannot deny that student  the needed related aids and services in an accelerated class or program.  For example, if a student’s IEP or plan under  Section 504 provides for Braille materials in order to participate in the  regular education program and she enrolls in an accelerated or advanced history  class, then she also must receive Braille materials for that class.  The same would be true for other needed  related aids and services such as extended time on tests or the use of a  computer to take notes.

Conditioning enrollment in an advanced class or program on  the forfeiture of needed special education or related aids and services is also  inconsistent with the principle of individualized determinations, which is a  key procedural aspect of the *IDEA*, Section 504 and Title II.  As noted above, under Section 504, the  provision of FAPE is based on the student’s individual education needs as  determined through specific procedures--generally, an evaluation in accordance  with Section 504 requirements.  34 CFR  104.35.  An individualized determination  may result in a decision that a qualified student with a disability requires related  aids and services for some or all of his regular education classes or his  program.  Likewise, the *IDEA* contains specific procedures for evaluations and for the development of IEPs  that require individualized determinations.   See 34 CFR 300.301 through 300.328.   The requirement for individualized determinations is violated when  schools ignore the student’s individual needs and *automatically* deny a  qualified student with a disability needed related aids and services in an  accelerated class or program.  

I urge you to use the information provided in this letter to  continue to evaluate whether your school district is in compliance with these  anti-discrimination requirements.  OCR  remains willing to continue supporting you in these efforts.  We provide technical assistance to entities  that request assistance in voluntarily complying with the civil rights laws  that OCR enforces.  If you need  additional information or assistance on these or other matters, please do not  hesitate to contact the OCR enforcement office that serves your state or territory.  The contact information for each office is  available online at: http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. I thank you in advance for your cooperation and assistance  in this important matter.

| Sincerely  yours,                     |
|---------------------------------------|
|                                  |
| Stephanie J. Monroe                   |
| Assistant Secretary for  Civil Rights |

**1** You may contact OSEP to address any issues that relate specifically to the requirements of *IDEA*.  Contact information for OSEP is available online at: http://www.ed.gov/policy/speced/guid/idea/monitor/state-contact-list.html.**2** The term "related aids and services" as used here is intended to include both the Section 504 requirements at 34 CFR 104.33(c) and the equivalent requirements under the *IDEA*, i.e. related services, supplementary aids and services, program modifications and supports for school personnel.  See 34 CFR 300.34, 300.42, and 300.320(a)(4).**3** Among other things, an IEP must contain a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child to advance appropriately toward attaining the annual goals; to be involved in and make progress in the general education curriculum and to participate in extracurricular and other nonacademic activities; and to be educated and participate with other children with disabilities and those without disabilities.  An IEP also must contain an explanation of the extent, if any, to which the child will not participate with children without disabilities in the regular class and in these activities.  34 CFR 300.320(a)(4)-(5).

  

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