Clarification: "Section 504 only" students and discipline for use or possession of drugs or alcohol
Section 504 includes the following provision:
"For purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability and who currently is engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities. Furthermore, the due process procedures at section 104.36 of title 34, Code of Federal Regulations (or any corresponding similar regulation or ruling) shall not apply to such disciplinary actions."
What does this mean?
A "504 only" student may be disciplined without regard to Section 504 protections (no manifestation determination meeting required) in the following circumstance:
(1) The student engages in the use or possession of illegal drugs or alchohol in violation of a school policy;
(2) The student is "currently engaging in the illegal use of drugs or in the use of alcohol"; and
(3) The discipline is the same type of discipline that would be taken against students who are not disabled.
What does it mean to "currently engage" in the illegal use of drugs or use of alcohol?
Section 504 does not say, but OCR has stated that the use has to be recently enough to justify a reasonable belief that the use is an ongoing problem. Evidence of current use may be a student's confession, a drug-alcohol evaluation, a juvenile report. Districts should be cautious in relying on hearsay statements by students or staff to establish "current use".
