To be successful on a Section 504 claim, a plaintiff must put forth evidence that she was “denied a federal benefit because of h[er] disability.” [1] Furthermore, it must be the product of deliberate or reckless indifference to the student’s federally protected rights, i.e. the school district must act with “bad faith or gross misjudgment.” [2]
To recover under Section 504, the pleading must allege facts that, if true, establish that:
(1) The student is disabled;
(2) The student is otherwise qualified to participate in school activities;
(3) The school or the board receives federal financial assistance; and
(4) The student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability. [3]
A student is ‘otherwise qualified’ if he meets all of a program’s other essential requirements; that is, he is functionally able to participate in school activities. [4] If a plaintiff does not meet the essential requirements of a program, however, the court can determine whether the plaintiff would meet those requirements if a reasonable accommodation were made. [5]
The fourth element of a Section 504 claim, that such discrimination on the basis of disability, requires more than proof of a mere violation of the Individuals with Disabilities Education Act (“IDEA”) (i.e., more than a faulty Individualized Education Program (“IEP”)). [6]
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[1] See, Pinn, 473 F. Supp. 2d at 484; Gavrity v. New Lebanon Cent. Sch. Dist., Nos. 05-CV-1024, 06-CV-317, 2009 U.S. Dist. LEXIS 90190, 2009 WL 3164435, (N.D.N.Y. Sept. 29, 2009), at *37 (noting that a § 504 claim requires a plaintiff to show that “he has been denied the benefit by reason of his disability”).
[2] See Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998), which notes that intentional discrimination under the Rehabilitation Act may be inferred from “at least deliberate indifference to the strong likelihood that a violation of federally protected rights will” occur), vacated on other grounds, 527 U.S. 1031, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Pinn, 473 F. Supp. 2d at 483 (“Where a plaintiff asserts denial of a free appropriate public education . . . , plaintiff must demonstrate bad faith or gross misjudgment.”); Gabel, 368 F. Supp. 2d at 334 (noting that a Rehabilitation Act claim may be brought if “a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE”).
[3] See Gabel ex rel. L.G. v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, at 334 (S.D.N.Y. 2005); See also Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, at 483 (S.D.N.Y. 2007), which notes that a plaintiff bringing a § 504 claim must demonstrate that she is disabled and that she has been excluded from federal benefits “because of his or her disability” (citing Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990)).
[4] See, Sch. Bd. Of Nassau County v. Arline, 480 U.S. 273, 288 n. 17 (1987); 7 C.F.R. § 15b.3(n)(4); 34 C.F.R. § 104.3(l)(4) (describing ‘otherwise qualified’ in the employment context)
[5] See Arline, 480 U.S. at 288 n. 17.
[6] See Gabel, 368 F. Supp. 2d at 334.