So the other day three people, a student who is Deaf, a hearing student who knows some ASL and an interpreter came to my office to ask some questions. In the middle of a great discussion on many topics related to education they, as a group asked:
“What is the difference between the ADA and Section 504?”
That is a good question. The answer is A LOT! For example one is three letters and one is three numbers. So, can you be more specific?
After a little negotiation to help them frame the actual question (many people would be shocked, I think to realize how often helping students figure out the question is much more important than helping them find the answer) they decided that they wanted to know why a person would choose to use 504 and not the ADA, or the ADA and not 504 or, you know, both at any given time.
Now that is a question I can answer! It gives me some direction and I can do it… but not in one go. We are going to be on this topic for a while.
Ok, you remember how as a kid you had to eat your vegetables first. You wanted dessert but you had to get through the stuff that is good for you first?
There are answers you want! Now. You want them right now! You are itching for them, and I could give them to you. But without context the answers I give will be interesting but not helpful. All sugar and no vitamins.
I am going for helpful. Sorry. It’s what I do.
If you want to know the how and when of 504 being useful, you have to start with why. Why is 504 in the first place.
You have to start with Authority. So. Here we go.
The 10th Amendment to the Constitution says that Congress can only pass laws on issues or matters that the Constitution specifically gives them the Authority over. If the Constitution is silent then… no. No Congress can’t.
If Congress “can’t,” then the authority over THAT (whatever THAT is) is reserved solely to the States (that’s States, Utah, Mississippi, Iowa, Massachusetts…)
So pop quiz hot shot! Where in the Constitution does it give Congress the authority over people who are Deaf? Or over Disabilities? Go ahead and look for it. I’ll wait.
Hint? It doesn’t.
Authority is a strange animal. It lives in various climates and walks on many planes. That sounded more mystical and shaman like in my head. Whatever.
Taxes are where Congress gets its authority to pass a law like 504. Article 1 Section 8 of the Constitution gives Congress the authority to collect taxes and to expend money. If you can do that then you can choose upon which items you will spend the money. It’s called “Carrot and Stick” policies.
Here is an example. Back in the late 1960s and early 1970s America was in the middle of a gas crisis. The Feds (read Congress) wanted everyone to drive 55 mph. But the Constitution does not give Congress the authority to force States to do that–or anything really.
So, it came down to money.
If a State set their speed limit at 55 mph they got federal highway funds (carrot) and if the State did not, they got no funds (stick).
I’ve also seen that idea explained as the carrot dangling from the stick, like the old cartoons where the prospector tries to make the stubborn mule walk. Either way it works. (Edit added after video)
This is the same reason why all States now have laws saying you have to be 21 to buy alcohol, and 18 to vote. If States adopted those laws they got funds for drunk driving prevention programs and police equipment and new voting machines. Get it?
So that is the authority Congress used to pass 504. But with 504 the authority attaches to everything. If you accept federal money for almost any thing you can’t discriminate against people with disabilities, according to 504.
Next problem, the whole of Section 504 is about a paragraph long. Seriously that’s it. So it has no room for explanations of what discriminate means, or who a person with a disability is or even what it means to accept federal funds…
So, all the different Executive Agencies made their own Regulations, basically wrote their own definitions of all those things.
If you want to know what discriminate means for a hospital you must look to the Regulations from the Department of Health and Human Services and not the ones written by the Department of Education… unless it is discussing a student who is hospitalized long term. How does the term Disability apply in an employment setting? The EEOC has the regulations for that, but not if you are an independent contractor, for that the Department of Justice wrote the Regulations. And so on. The Regulations often are similar but rarely the same.
Yes, it’s labor intensive, confusing and… mistakes are made. Grin.
Next problem, what does mean except federal funds. Also sometimes a little confusing.
With State agencies and other executive branch government entities you can usually be pretty sure they accept federal funds under 504, particularly after 9/11, because the Department of Homeland Security made it rain!
Many private businesses also accept federal funds in fact more than you would think. For example hospitals clinics and doctors that accept Medicare and Medicaid are accepting federal funds. Private colleges and universities who accept federally subsidized student loan’s are excepting federal funds (even the local college of massage therapy or the college of hair design if they get federally subsidized student loans).
There are some weird limitations to whether 504 applies in some stipulations but not as many as the ADA. For the most part “youse takes the money youse follows da rules.” The weird stuff I will discuss it all later vlog.
Ok here we are, authority. This you will find out is the magic key you need to make 504 work. If you know that the entity accepts federal funds BANG your in… if you know which Regulations apply.
The ADA is not so straight forward. We will talk about that later too.
Finally, an interesting problem that has been solved (just to give you hope). when Section 504 of the Rehabilitation Act of 1973 was passed it did not have a great deal of clarity on how it was to be applied (you may argue that is still true). So universities, for example, argued that classrooms didn’t accept federal funds and so they didn’t have to be accessible, only the office of student loans accepted federal funds so only that office had to be accessible. Courts agreed. No joke.
Congress fixed that problem in the late 1980s by passing a statute called the Civil Rights Restoration Act that said if you except federal money in one area of your entity it covers everything that benefits from the money. So in a practical sense, everything.
There you are, quick and dirty on the authority Congress used to pass Section 504. Next we’re going to talk about the ADA. The authority for the ADA will take at least three vlogs. Yeah, it’s that complicated. But we’re done you will understand enough that you can take advantage these laws, know how each is applied and you should have an idea at least as to when it’s best to use one over another… or both!
Remember! Uncle Dale’s Rules may be informative but it is not a substitute for legal advice. If you want information on any of the topic contained herein please talk to a lawyer in your area.