November 2009

Case of the Month: Ellensberg v. New Mexico Military Institute

Eligibility under IDEA not the same as under 504

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This interesting case from the 10th Circuit holds that a student who is eligible under the IDEA does not necessarily have a disability that "substantially limits a major life activity" as required under Section 504. While there is a "likelihood of overlap", "disabilities that merit an IDEA individualized education program range from the minimal to the serious", and may not meet the criteria. Here, a student with Oppositional Defiant Disorder filed suit under Section 504 against a state school for refusing her admission, but did not establish that she had a disability under Section 504 merely by stating that she had a disability under the IDEA. The lower court was correct in ruling for the school on a motion for summary judgment.

So, what does this mean for schools? This case reinforces the notion that there are no "automatic ins" when it comes to 504 eligibility determinations. School teams need to make individual determinations about applying the 504 criteria to students. In the recent Americans with Disabilities Act Amendments, Congress cautioned against prolonged consideration of whether a person had a disability or not stating, basically, that it was not that difficult of a question. Still, teams should not make assumptions. For example, a student who is terminated from IDEA eligibility because that student no longer needs specially designed instruction may or may not have a current disability under Section 504. The same is true for parents who revoke consent for special education services under the IDEA.