UNITEDSTATESDEPARTMENT

OFEDUCATION
OFFICEFORCIVIL RIGHTS

THE ASSISTANTSECRETARY

DEC26 2007

Dear Colleague:

I am writing to adviseyou of an issueinvolving studentswith disabilitiesseekingenrollmentin

challengingacademicprograms,suchas AdvancedPlacementand InternationalBaccalaureate
classesor programs(acceleratedprograms). Specifically,it hasbeenreportedthat someschools
and school districtshave refusedto allow qualified studentswith disabilitiesto participatein
suchprograms. Similarly, we are informed of schoolsand schooldistrictsthat, as a condition of
participationin suchprograms,have requiredqualified studentswith disabilitiesto give up the
servicesthat have beendesignedto meet their individual needs. Thesepracticesare inconsistent
with Federallaw, and the Office for Civil Rights (OCR) in the U.S. Departmentof Education
will continueto act promptly to remedy suchviolationswhere they occur.

As you know, OCR is responsiblefor enforcingtwo Federallaws that protect qualified

individuals with disabilitiesfrom discrimination.OCR enforcesSection504 of the Rehabilitation
Act of 1973 (Section504) and its implementingregulationsat 34 CFR Part 104,which prohibit
discriminationon the basisof disability in programsor activitiesreceiving Federalfinancial
assistance.OCR is also responsible,in the educationcontext,for enforcing Title II of the
Americanswith Disabilities Act of 1990 (Title II) and its implementingregulationsat 28 CFR
Part35, which prohibit discriminationon the basisof disabilityby entitiesof Stateand local
government. Although this letter discussesaspectsof the Section504 regulation,Title II
providesno lesserprotectionsthan doesSection504. Also relevantare the requirementsof the
Individuals with Disabilities EducationAct (IDEA), which is administeredby the Department's
Office of SpecialEducationPrograms(OSEP). The IDEA provides funds to Statesand school
districts in order to assistthem in providing specialeducationand relatedservicesto eligible
children with disabilities. The IDEA's implementingregulationsare locatedat 34 CFR Part 300.
OCR consultedwith OSEP in drafting this letter.'

As an initial matter, I want to commend the efforts so many of you have made to ensurethat
placementdecisionsfor all studentsarebasedon eachstudent'sindividual academicabilities
regardlessof the presence,nature,or severityof a disability. I want to ensurethat all of you are
awareof the Federalcivil rights requirementsdiscussedbelow.

' You may contact OSEP to addressany issuesthat 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.

4OOMARYLANDAVE.,S.W.,WASHINGTON,
DC 2O2O2.ITOO
www.ed.gov

Our missionis to ensureequal accessto education and to prontote educational excellencethroughout the nation.
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Prohibition Against Disability-Based Discrimination in Accelerated Programs

The practice of denying, on the basis of disability, a qualified studentwith a disability the
opportunity to participate in an acceleratedprogram violates both Section 504 and Title II.
Discriminationprohibitedby theselaws includes,on the basisof 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),(bxlXi), (bX1)(ii); 28 CFR
35.I 30(a),(b)(1Xi),(bXlXii).

Under Section 504 and Title II, a recipient may not utilize criteria or methods of administration
that have the effect of subjectingqualified individualswith disabilitiesto discriminationon the
basisof disability. 34 CFR 104.4(bX4)and28 CFR 35.130(bX3).A public entity alsomay not
impose or apply eligibility criteria that screenout or tend to screenout an individual with a
disability or any classof individualswith disabilitiesfrom fully and equally enjoying any
service,program,or activity, unlesssuchcriteria can be shown to be necessaryfor the provision
of the service,program,or activity being offered. 28 CFR 35.130(bX8). Public school students
with disabilitieswho requirespecialeducationand/orrelatedservicesreceivethem either
through implementationof an individualizededucationprogram(IEP) developedin accordance
with Part B of the IDEA or a plan developedunder Section 504. 34 CFR 104.33. It is unlawful
to deny a studentwith a disability admissionto an acceleratedclassor program solely becauseof
that student'sneedfor specialeducationor relatedaids and services',or becausethat studenthas
an IEP or a plan under Section504. The practiceof conditioningparticipationin an accelerated
class or program by a qualified studentwith a disability on the forfeiture of special education or
of relatedaids and servicesto which the studentis legally entitledalso violatesthe Section504
and Title II requirementsstatedabove.

Pleasenote that nothing in Section504 or Title II requiresschoolsto admit into accelerated

classesor programsstudentswith disabilitieswho would not otherwisebe qualified for these
classesor programs. Generally,under Section 504,an elementaryor secondaryschool student
with a disability is a qualified individual with a disability if the studentis of compulsoryschool
age. However, schoolsmay employ appropriateeligibility requirementsor criteria in
determining whether to admit students,including studentswith disabilities, into accelerated
programsor classes.Section504 and Title II requirethat qualified studentswith disabilitiesbe
given the sameopportunities to competefor and benefit from acceleratedprograms and classes
as are given to studentswithout disabilities. 34 CFR 104.4(bx1)(ii) and 28 CFR
3s.13O(bxlxii).
Furthermore,a recipient'sprovision of necessaryspecialeducationand relatedaids and services
to qualified studentswith disabilitiesin acceleratedclassesor programsmust be consistentwith
the Section 504 and Title II requirementsregarding free appropriatepublic education(FAPE).

' The term "related aids and services" as used here is intended to include both the Section 504 requirementsat
34 CFR 10a.33(c) and the equivalent requirementsunder the IDEA, i.e. related services,supplementaryaids and
services,program modifrcationsand supportsfor schoolpersorurel.See34 CFR 300.34,300.42,and 300.320(a)(4).
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Free Appropriate Public Education

In general, conditioning participation in acceleratedclassesor programs by qualified students

with disabilities on the forfeiture of necessaryspecial educationor related aids and services
amountsto a denial of FAPE under both Part B of the IDEA and Section 504.

Section 504 requires a recipient that operatesa public elementaryor secondaryeducation

program or activity to provide FAPE to eachqualified personwith a disability who is in the
recipient'sjurisdiction, regardlessof the natureor severityof the person'sdisability. 34 CFR
104.33(a).Under Section504, the provision of an appropriateeducationis the provision of
regular or special educationand related aids and servicesthat satisfy certain procedural
requirementsand that are designedto meet the individual educationneedsof personswith
disabilitiesas adequatelyas the needsof personswithout disabilitiesare met. 34 CFR
104.33(bX1)(i). Schooldistrictsmay createa plan or other documentto provide studentswith
disabilitieswith FAPE pursuantto Section504. The Section504 FAPE requirementmay also be
met through the implementation of an IEP developedin accordancewith Part B of the IDEA.
34 CFR 104.33(bX2).

Part B of the IDEA requires that FAPE be made available to eligible studentswith disabilities in
certain age ranges. The IDEA defines FAPE as special educationand related servicesthat: are
provided free of charge;meet Statestandards;include an appropriatepreschool,elementary
school,or secondaryschool education;and are provided in conformity with a properly developed
IEP. 20 USC $ 1a01(a)(9); 34 CFR 300.17.'

Participationby a studentwith a disability in an acceleratedclassor program generallywould be

consideredpart ofthe regular educationor the regularclassesreferencedin the Section504 and
the IDEA regulations. Thus, if a qualified studentwith a disability requires related aids and
servicesto participate in a regular educationclass or program, then a school cannot deny that
studentthe neededrelatedaids and servicesin an acceleratedclassor program. For example,if a
student'sIEP or plan under Section504 providesfor Braille materialsin order to participatein
the regular educationprogram and she enrolls in an acceleratedor advancedhistory class,then
she also must receiveBraille materialsfor that class. The samewould be true for other needed
relatedaids and servicessuchas extendedtime on testsor the use of a computerto take notes.

Conditioning enrollment in an advancedclass or program on the forfeiture of neededspecial

education or related aids and servicesis also inconsistentwith the principle of individualized
determinations,which is a key proceduralaspectof the IDEA, Section504 and Title II. As noted
above,under Section504, the provision of FAPE is basedon the student'sindividual education

t
Among other things, an IEP must contain a statementof the special education and related servicesand
supplementaryaids and servicesto be provided to the child, or on behalf of the child, and a statementof the program
modifications or supports for school personnelthat will be provided to enable the child to advanceappropriately
toward attaining the annual goals; to be involved in and make progressin the general education curriculum and to
participate in extracurricular and other nonacademicactivities; and to be educatedand 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.
34CFR300.320(a)(a)-(s).
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needsas determinedthrough specific procedures--generally,an evaluation in accordancewith

Section504 requirements.34 CFR 104.35. An individualizeddeterminationmay result in a
decision that a qualified studentwith a disability requires related aids and servicesfor some or all
of his regular educationclassesor his program. Likewise, the IDEA contains specific procedures
for evaluationsand for the developmentof IEPs that require individualized determinations. See
34 CFR 300.301through 300.328. The requirementfor individualizeddeterminationsis violated
when schools ignore the student's individual needs and automatically deny a qualified student
with a disability neededrelatedaids and servicesin an acceleratedclassor program.

I urge you to use the information provided in this letter to continue to evaluatewhether your
school district is in compliancewith theseanti-discriminationrequirements.OCR remains
willing to continuesupportingyou in theseefforts. We provide technicalassistanceto entities
that requestassistancein voluntarily complying with the civil rights laws that OCR enforces. If
you needadditionalinformation or assistance on theseor other matters,pleasedo not hesitateto
contact the OCR enforcementoffice that servesyour stateor territory. The contact information
for eachoffice is availableonline at: http://wdcrobcolp0l.ed.gov/CFAPPS/OCR/contactus.cfm.
I thank you in advancefor your cooperationand assistancein this important matter.

StephanieJ. Monroe
AssistantSecretaryfor Civil Riehts