ADEQUATE ACCESS OR EQUAL TREATMENT: LOOKING BEYOND THE IDEA TO SECTION 504 IN A POST-SCHAFFER...

INTRODUCTION

In the public school special education context, the Individuals with Disabilities Education Act (IDEA)1 has served as the dominant tool for ensuring that no child is left behind on the basis of a disability. But the IDEA approach is not without drawbacks. Addressing the Act's many limitations, the Supreme Court held this Term in Schaffer v. Weast that the IDEA forces parents, not schools, to prove that their children are not receiving a free appropriate public education (FAPE).2 The 6-2 Schaffer decision, in which Chief Justice Roberts took no part, was not particularly surprising. Placing the burden of proof on the party seeking relief is the ordinary default rule when Congress is silent, and most states already required this standard in IDEA challenges.3 However, the dissents and amicus briefs in Schaffer illustrate the obstacles that parents must overcome when challenging a school's decision under the IDEA.

In her dissent in Schaffer, Justice Ginsburg emphasizes the unequal playing field in the battles between schools and parents under the IDEA and finds an unlikely ally in Judge Luttig of the Fourth Circuit: "For reasons well stated by Circuit Judge Luttig, dissenting in the Court of Appeals, . . . I am persuaded that 'policy considerations, convenience, and fairness' call for assigning the burden of proof to the school district in this case."4 Judge Luttig aptly describes these considerations:

For the vast majority of parents whose children require the benefits and protections provided in the IDEA, the specialized language and technical educational analysis with which they must familiarize themselves as a consequence of their child's disability will likely be obscure, if not bewildering. By the same token, most of these parents will find the educational program proposed by the school district resistant to challenge: the school district will have better information about the resources available to it, as well as the benefit of its experience with other disabled children.5

The amicus brief by the parents, attorneys, and advocates further illustrates why parents have an uphill battle under the IDEA. Among their arguments, the amicus petitioners assert that parents do not have "full, unfettered access to all relevant information about a proposed placement" or to the school's "experts who have worked with or evaluated the child," that "parents often proceed pro se and do not . . . have any experience in the mechanisms for presenting evidence," and that "there is usually no right to discovery by which the parents can obtain documents . . . [or] depose school district employees."6 Indeed, while the outcome in Schaffer might have been unsurprising, the Court's focus on the IDEA underscored how unequal the playing field is for students with special needs looking to obtain an adequate education under the IDEA.

And the playing field arguably became even more unequal when Congress reauthorized the IDEA in 2004.7 The proposed regulations have yet to become official, which makes it difficult to measure the full impact of the IDEA'S reauthorization.8 Professor Paolo Annino summarizes some of the potentially negative ramifications of the new IDEA:

[M]any of the [IDEA] Improvement Act's revisions are harmful to children pursuing a FAPE and dilute their due process protections. These harmful changes include the elimination of short term objectives on the [Individualized Education Program (IEP)]; the elimination of the requirement that schools inform parents whether their child's progress is sufficient to enable him or her to achieve annual goals listed in the IEP; the waiver of the right to have a child reevaluated at least once every three years; removal of children for certain disciplinary problems to an interim placement for 45 school days; reduction of services provided to those children removed; the elimination of the stay put provision in discipline cases; and the reduction of discipline protections for children not yet eligible for special education.9

Furthermore, the IDEA focuses on guaranteeing education to students with special needs, but, in many cases, parents are just as concerned that their child was discriminated against-and that other children with similar needs would likewise face similar discriminatory practices. As further explored in Part II, the IDEA allows for an individualized analysis and is thus not a particularly effective tool for systemic reform.

However, Section 504 of the Rehabilitation Act (Section 504)10 is a powerful, yet oft-neglected, complement to the IDEA-perhaps more powerful and effective in certain instances-if it is understood and applied correctly. The overall comparison of the IDEA and section 504 is complicated, but important. As explored in Parts II and III, these legal standards often accomplish similar objectives, but do so by using different instruments and driving principles. In essence, the IDEA focuses on adequate access to a FAPE, while Section 504 emphasizes equal treatment within federally funded programs.11 The IDEA is not about antidiscrimination, but rather a guarantee of access to public education for children with disabilities. Conversely, Section 504 emerged specifically in response to discrimination against individuals with disabilities.13 Neither standard alone accurately depicts the principles at play in most special education cases. Instead, we must understand both standards and how they interact to better understand how to address discriminatory practices that inhibit students with disabilities from receiving the free and appropriate public education to which they are entitled under federal law.

In this Note, the lens through which we view these legal standards in action involves state special schools for the blind and deaf and their admission practices that exclude multi-disabled students. Part I first illustrates the limitations of the IDEA in California's state special schools through the story of Holly P.; it then further demonstrates the need to supplement the IDEA with Section 504 through a state-by-state survey of thirty states' state special schools admission. Detailed analysis of each state special school system is included in the Appendix. Part II explores the contrasting legal standards of adequate access to a FAPE under the IDEA and equal treatment under Section 504, as applied to the state special school context. Finally, Part III moves beyond the state special school context to examine special education generally-demonstrating how Section 504 is a powerful tool, and an excellent complement to the IDEA, for making sure that no child is left behind14 or otherwise excluded from educational opportunities solely on the basis of a disability.15 This understanding is particularly important for special education attorneys and advocates as they attempt to look beyond the IDEA in a postSchaffer public school context.

I. THE POLICY CONTEXT: MULTI-DISABLED STUDENTS AND STATE SPECIAL SCHOOLS FOR THE BLIND AND DEAF

Multi-disabled blind and deaf children are entitled to a free appropriate public education (FAPE) under state and federal law, including any communicative and related services necessary for them to benefit from special education. However, state special schools in California-and in many states nationwide-either explicitly exclude multi-disabled blind and deaf students in their admission policies or informally exclude them in practice.17 When these schools were founded in the nineteenth century, many children were "pure blind" or "pure deaf," so the establishment of special schools for the pure blind and deaf was a logical and meaningful public policy.18

However, with advancements in medicine and technology, "pure" blindness and deafness have become less common. Instead, children born with hearing or visual impairments are also likely to have other disabilities. Estimates vary widely, but many researchers have found that approximately thirty percent of all school-aged deaf children have at least one additional disability,20 with mental retardation, cerebral palsy, aphasoid, and emotionalbehavioral disorders being the most common nonsensory disabilities.21 The majority of blind children also have at least one additional disability. As many as two-thirds of blind children and one-third of partially sighted children have additional disabilities, the most common of which are mental retardation, hearing impairment, cerebral palsy, and seizure disorders.22

Consequently, the state special schools have effectively served a special population for the last 150 years, but changed circumstances-a lower incidence of pure blindness and deafness and a rise in the proportional number of multi-disabled blind and deaf students-have created a situation in which these schools purposefully exclude the children who would benefit most from their services and who currently may not receive a FAPE anywhere else in the public school system. In this Part, the policy environment at the California state special schools will first be outlined through the story of Holly P., followed by the findings from the state-by-state survey of twenty-nine states and the District of Columbia. Part II then uses this specific context to illustrate in depth how the IDEA and Section 504 interact and complement each other.

A. The Unfriendly Sandbox: The Story of Holly P. and the California State Special Schools for the Blind and Deaf

To understand the situation of multi-disabled students in state special schools, consider the story of Holly P.23 In 1994, Holly was born two weeks late with a high fever and signs of infection. After ten days in the intensive care unit, Holly was sent home. During the next year, her mother noted many irregularities, and Holly was ultimately diagnosed as deaf when she was twelve months old. Doctors performed additional tests that confirmed she also had a mild case of Turner's Syndrome (e.g., underdeveloped and disproportionately developed limbs, bones, and organs), as well as developmental delays that fell outside of Turner's Syndrome. Holly was not only deaf but also unable to speak. When she was fifteen months old, Holly was assessed through her school district's special education local plan area (SELPA), and she was placed at a local children's center that specialized in preschool special education. After a few months at this center, the specialists recommended that she attend the preschool program at the California State Special School for the Deaf (CSD) in Fremont.24

Holly arrived at CSD in November of 1996, and her parents initially thought of CSD as a "magical and wonderful place."25 Holly received a comprehensive education, including American Sign Language (ASL) training, speech and language therapy for deaf students, occupational therapy, and adaptive physical education. Additionally, the CSD program included weekly home visits (where her teacher observed Holly in her home setting), weekly classes in ASL at CSD for family and friends, and group therapy sessions for parents and siblings each Friday. As her mother remarked, "Intervention does not get any better than that."26 CSD provided a variety of services for multi-disabled deaf children that were unrivaled in the state, and Holly progressed exponentially in her preschool program there.

The situation changed as the school and others became aware that Holly was more than deaf: she was multi-disabled. As her parents met with the district and CSD teachers and administrators to develop Holly's Individualized Education Program (IEP), it became clear that she would continue to need services beyond those provided to "pure" deaf students in order to benefit from her education-including speech and language therapy, occupational therapy, and a one-to-one (1:1) special education aid. At that point, her parents noted that "CSD was no longer a friendly sandbox."27 Not only were CSD administrators requesting that she be transferred to a local school in her home district, but parents of other students and other members of the deaf community began to demand that Holly be removed from CSD.28 After all, they explained, CSD was there to serve nondisabled students: as deaf culture teaches, "pure" deaf students are not disabled; they merely speak a different language (i.e., ASL). Holly, on the other hand, was deaf, nonverbal, and developmentally delayed, and her presence sent the wrong message to "pure deaf students.

Holly's parents sought other options in the state,29 but they did not find any school or program in California that could provide an education remotely as appropriate for Holly as that which had been provided by CSD. So, they resisted the demands. Their efforts kept Holly at CSD, but not without controversy or incident. The school took affirmative measures to push Holly out: A teacher sympathetic to Holly's situation was let go. Her parents were not invited to preregistration in 1998, and the school refused to accept her registration materials when presented. After resistance by her parents, the school allowed the registration but then tried to physically block Holly's entrance to the school on the first day of class.

Additionally, CSD created new, unwritten policies to exclude Holly. One of these policies required that if the district-provided 1:1 aid called in sick or did not show up, Holly would be sent home that day. On several occasions, Holly's mother would arrive at school, and the school would inform her of the 1:1 aid's absence, requesting that Holly remain at home that day. Instead, her mother would substitute as the aid. CSD administrators were upset with this arrangement, and the next time the aid was absent, CSD refused to allow the substitution. The administrators informed Holly's mother that they would call the sheriff to remove Holly if she tried to remain at CSD without the district-approved 1:1 aid. After calling her lawyer, who encouraged her to take Holly home, Holly's mother refused and called the school's bluff. She substituted as Holly's aid for the day, and no sheriff arrived to intervene. This unwritten policy is just one of many hoops that Holly's parents had to jump through for Holly to remain at the school. CSD continued to request that she be transferred.

Embarrassed and furious, Holly's parents returned to their lawyer to explore legal options, only to find that the traditional legal option was less than satisfying: the Individuals with Disabilities Education Act (IDEA).30 Under the IDEA, Holly's parents would need to prove that the school violated Holly's right to a free appropriate public education (FAPE).31 To do so, they would need to show that Holly could only derive a reasonable educational benefit from her IEP at CSD-and not at any other school in the district. Holly's parents, however, were not just concerned about whether Holly could receive a FAPE; they also were furious that a public school had singled out their daughter for unfair treatment and excluded her from her blind and deaf peers and from tax-supported programs-solely because she had an additional disability. They wanted to combat discrimination and unequal treatment, in addition to ensuring that Holly received adequate access to a FAPE. Any lawyer versed in the IDEA would inform them that discrimination is not a part of the IDEA and that they must focus on whether Holly benefited from the education.32 Thus, the IDEA remedy did not match the discriminatory wrong. And, the Section 504 option was not discussed.

Holly's story is not unique in California (or nationwide). Many parents and students have faced similar discrimination-at all three of the schools for the deaf and blind in California-and they have voiced their concerns about current state special school treatment of multi-disabled students.34 In fact, the schools have admission policies that explicitly exclude certain multi-disabled blind and deaf children. Based on these admission policies, blind and deaf students who also have developmental delays or other mental or emotional disabilities-like Holly-can be and are being excluded by the California state special schools. Although the details of each individual case differ, school administrators base these rejections on the schools' mission statements and their explicit admission policies. As Holly's story indicates, school administrators in California reach beyond these formal exclusionary principles to push out multi-disabled children through informal or unwritten policies and practices.

B. Looking Beyond California: A State-by-State Survey of State Special Schools' Admission Policies and Practices

As Part I.A illustrates, the California state special schools exclude multidisabled students, but what about special schools in other states? This Part presents the general findings of a state-by-state survey,36 which illustrates the varying trends in state special school admission practices from twenty-nine states and the District of Columbia.37 This survey reveals that states take very different approaches to state special school management and organization. Admission policies for state special schools also differ greatly by state-though many states exclude multi-disabled students. The Appendix includes more detailed information on each state surveyed.

The states surveyed can be roughly divided into five categories or models, with an additional noncategory38 for the states that do not have state special schools:

1. Embracing Multi-Disabled Model (seven states): statutory or regulatory framework of state special schools explicitly accepts multi-disabled students for admission;

2. Including If Recommended/Capacity Available Model (four states): statutory or regulatory framework allows multi-disabled students to attend if recommended by IEP and school has capacity;

3. Primary Ongoing Need Model (eight states): framework places some limit on multi-disabled students-e.g., that hearing/seeing impairment be "primary ongoing need"-such that in practice these students are typically excluded;

4. Public-Private Hybrid Model (two states): framework aims at sending multi-disabled students to private special schools, excluding them from state special schools; and

5. Explicit Exclusion Model (five states): statutory framework explicitly excludes multi-disabled students from admission to state special schools.

It is important to note that these are rough categorizations, and great variation in process and substance may exist between states within a given category. These categories, which are represented graphically in Figure 1, merit further description in this Part (as well as in the Appendix).

1. Embracing Multi-Disabled Model

Seven of the states surveyed-Illinois, New Jersey, New York, Oregon, Texas, Virginia, and Wisconsin-fall within the "embracing multi-disabled" model. These states explicitly include multi-disabled students in their statutory or regulatory admission framework. Each state takes a different approach. For instance, Illinois and New Jersey provide special education programming at each school and specifically allow multi-disabled students in admission standards. Alternatively, New York takes a public-private hybrid approach, in which "pure" blind or deaf students are encouraged to go to the private special schools, while multi-disabled students actually have preferred admittance into the state special schools.40

Of the seven "embracing multi-disabled" states, Texas appears to be the "best practices" model. The Texas legislature and state board of education interpret Section 504 as applicable to state special schools, and consequently, they do not discriminate against multi-disabled students in their admission policies.41 Interviews with parents and advocates overwhelmingly point out Texas as the ideal example of a state with fully inclusive state special schools, specifically because its admission policies take into account both the IDEA'S FAPE considerations and Section 504's equal treatment provisions. In addition, these policies are not just lip service: what is written is also put into practice.

2. Including If Recommended/Capacity Available Model

Four states-Colorado, Idaho, New Mexico, and Utah-also embrace multi-disabled students in state special schools, as long as the students are recommended by their home districts through the IEP process and as long as the schools have the capacity to accommodate them.42 The statutory/regulatory admission standards are virtually identical to those of the "embracing multi-disabled" states, but these states are somewhat less inclusive because of the small size of the states and the consequent capacity constraints of the schools. As New Mexico's policy illustrates,43 these states generally strive to include all multi-disabled students, but they will not be admitted if accommodating them exhausts resources.44

3. Primary Ongoing Need Model

This middle-ground category of "primary ongoing need" includes eight states: Arizona, Indiana, Michigan, Minnesota, Missouri, Ohio, Tennessee, and Washington. Washington typifies this category: the admission standards do not exclude multi-disabled students, but they allow schools to exclude based on emotional or mental disability if administrators deem that the needs related to the additional disability outweigh the needs of the student's hearing or seeing disabilities.45 So, in practice, multi-disabled students can be and-as uncovered through interviews with parents and advocates-usually are excluded from state special schools in states that employ this model.

That said, each state's policy differs dramatically in this category. For instance, Ohio and Tennessee allow state special schools to exclude students based on their inability to "function in a social setting" or their physical or social immaturity, while Michigan, Minnesota, and Washington exclude students whose "primary ongoing need" is something other than a hearing or seeing impairment.46 Multi-disabled students may be included, but research and interviews have suggested that they are often excluded in practice.

4. Public-Private Hybrid Model

The public-private hybrid model encompasses states that have both public and private schools for blind and deaf students, but the states pay for multi-disabled students to attend private alternatives (thus, the states exclude them from state-sponsored schools). Many states have private special schools, but two states-Massachusetts and Pennsylvania-clearly fall within this publicprivate hybrid category because they aim to send multi-disabled students to private schools.47 New York is perhaps the most complex hybrid; it is not only in this category but also in the most embracing category because the New York state special schools do not exclude multi-disabled students, but actually prefer them over "pure" blind or deaf students.48 Conversely, Massachusetts and Pennsylvania try to exclude multi-disabled students from the state-sponsored schools and alternatively place them in private special schools. For instance, Massachusetts is the home of various public and private special schools, and the general trend is to place multi-disabled students in private alternatives. Likewise, Pennsylvania explicitly funds private placements for multi-disabled students.49 This hybrid category is a step removed from the "explicit exclusion" model because the state attempts to place these students in private alternatives, instead of in their home districts.

5. Explicit Exclusion Model

The last group of five states-California, Florida, Georgia, Kentucky, and Maryland-explicitly excludes multi-disabled students from state special schools.50 Florida is a perfect example; its admission standards exclude both trainable mentally handicapped and profoundly mentally handicapped students.51 Although the admission standards might allow some multi-disabled students to attend the Kentucky School for the Blind (KSB), court records indicate that, in practice, most are excluded.52 For instance, federal district court records reveal that KSB excludes blind students with mental retardation because the admission standards were "designed for those visually handicapped who would be classified at least as 'trainable' mentally handicapped."53 Many of the other states in this exclusionary category, such as California and Florida, have explicit admission policies that exclude multi-disabled students.

This state-by-state survey sheds light on current practices and policies of various states and offers useful comparisons to the California state special school system. One of the most compelling findings of the state-by-state survey concerns the disconnect between policy and practice: what most state special schools say they do and what they actually do differs dramatically.54 This finding is particularly important to applying the legal principles discussed in the next Part: in particular, proving that a school provides a FAPE under the IDEA or proving discrimination on the basis of disability under Section 504 often requires the parents to confirm whether written school policies are indeed implemented in practice as written.

Most importantly, this state-by-state survey uncovers a troubling inequality among states with respect to their treatment of multi-disabled blind and deaf students. As further illustrated in the Appendix, some states embrace these students in their state special schools, while others explicitly exclude them; most lie somewhere in between on this continuum, and anecdotal evidence indicates that many of those in-between state special schools (i.e., the primary ongoing need model) exclude these students in practice-even if admission policies state differently. This unequal treatment among states illustrates a "circuit split" of sorts, which merits closer scrutiny in order to equalize treatment not just among states in how they administer state special schools but also between the pure blind and deaf students and their multi-disabled peers. The fact that states differ so dramatically in their state special school admission policies and practices only underscores the importance of understanding the rights of multi-disabled blind and deaf students and the responsibilities of state special schools nationwide under federal law. Part II embarks on this task.

II. THE LEGAL PRINCIPLES: THE IDEA AND SECTION 504 IN THE STATE SPECIAL SCHOOL CONTEXT

Now that the policy environment at the state special schools nationwide has been detailed, this Part explores the legal principles at play under federal law. To simplify the analysis, this Part uses the California state special school context (and the story of Holly P.) as the lens through which to view the legal tools available for students with special needs. As mentioned in the Introduction, two main legal frameworks apply to multi-disabled students and public schools: the Individuals with Disabilities Education Act (IDEA) and section 504 of the Rehabilitation Act (Section 504).55 The IDEA and Section 504 offer two distinct yet complementary standards to ensure that children with disabilities receive appropriate education. While the IDEA focuses on adequate access to a FAPE, Section 504 emphasizes equal treatment within federally funded educational programs.

As further discussed in the following Parts, legal challenges to the state special schools' admission decisions nationwide have typically been brought under the IDEA, and most IDEA challenges have been unsuccessful. However, Section 504 also provides grounds for suit, although its application to state special schools is an issue of first impression for the Ninth Circuit and California state courts (and most other states and circuits nationwide). Neither standard taken alone addresses the legal and policy principles at play with multi-disabled students and state special schools. Instead, special education attorneys and advocates must understand both legal frameworks and their interaction to better comprehend the underlying principles and policy rationales. In Part ILA, the classic IDEA claim will be presented, while Part II.B will introduce the complementary (and less utilized) Section 504 claim.

A. The Classic IDEA Claim: A Federal Mandate To Provide Adequate Access to a FAPE

Congress first addressed the issue of special education when it amended the Primary and Secondary Education Act of 1965 and added a special grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children."56 Initial efforts to encourage states to educate special needs students failed, and in 1975, Congress found that the majority of disabled students were "either totally excluded from schools or sitting idly in regular classrooms awaiting the time when they were old enough to drop out."57 Consequently, Congress passed the Education for All Handicapped Children Act in 1975, later renamed the Individuals with Disabilities Education Act (IDEA),59 in an effort to address the educational needs of children with disabilities. As the Schaffer Court noted this Term, the "IDEA was intended to reverse this history of neglect. As of 2003, the [IDEA] governed the provision of special education services to nearly 7 million children across the country."60

Under the IDEA, students with disabilities have the right to a free appropriate public education (FAPE).61 The term "free appropriate public education" requires that special education and related services are made available to the student in the least restrictive environment (LRE); that is, children are entitled to receive these services and should receive that education with their nondisabled peers to the maximum extent appropriate.62 The FAPE services must meet state educational standards, be free of charge, and comply with the student's individualized education program (IEP).63

The IDEA not only provides the substantive right to a FAPE, but it also grants parents and nonminor children procedural protections to enforce those rights. Specifically, the IDEA requires parental consent and involvement in decisions affecting a child's IEP.64 Equally important, the U.S. Department of Education outlines four actions that parents can take if they do not agree with the school's recommendations about eligibility, evaluation, placement, or services: (1) try to reach an agreement; (2) ask for mediation; (3) ask for due process; or (4) file a compliance complaint with the state education agency (SEA).65 The third option, "an impartial due process hearing,"66 was the subject of the Court's decision in Schaffer.67 It is also the option most important for the context at hand because an IDEA challenge of the California state special schools' admission practices would likely take the form of a due process hearing.68 The elements of the IDEA are outlined below, as applicable to the state special school context.

1. Eligibility for IDEA services

To be eligible for services under the IDEA, a child must be between the ages of three and twenty-one and be identified as having one or more disabling conditions.69 The qualifying conditions must further adversely affect the student's educational performance and must require special education.70 Ultimately, the IEP team (made up of qualified professionals and the child's parents) makes the actual determination of the eligibility for special education and related services based on assessment reports, observations of the student, and other information presented at the IEP team meeting. As was the case with Holly P., eligibility is not a hurdle for multi-disabled students at state special schools: "hearing impairments (including deafness)" and "visual impairments (including blindness)" are explicitly included within the statutory definition of a "child with a disability."71

2. Special and related services provided

A student who is found eligible for special education under the IDEA is entitled to certain "special and related services," as provided by Congress: services must be "provided at public expense, under public supervision and direction, and without charge . . . [and must] meet the standards of the State educational agency."72 The Rowley Court has reinforced Congress's definition of special and related services by holding that the services must "confer some educational benefit upon the handicapped child"73 and be "individually designed to provide educational benefit to the handicapped child."74 The IDEA further defines "special education" as "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability,"75 and "related services" as "transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education."76 Such related services can include speech and language services, auditory services, mental health counseling (individual, group, family), physical and occupational therapy, adaptive physical education, therapeutic recreation, rehabilitation counseling, health services (specialized health care plan), home or hospital instruction, specialized driving instruction, and social worker services-just to name a few.77

For multi-disabled blind and deaf students, such as Holly, these services would clearly include "speech-language pathology and audiology services,"78 qualified personnel in both deaf/blind and special education,79 and any other "instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings" that is needed for the child to receive a FAPE.80 Consequently, establishing that a FAPE should include these services, if identified as needed for a FAPE, would not pose a significant hurdle. In fact, the U.S. Department of Education has issued explicit policy guidance on the services that deaf children require to receive a FAPE.81

3. Extent of services required for a FAPE

If the above two elements were the only necessary components of the IDEA analysis, multi-disabled students would have a strong claim that they should be admitted and receive services at the state special schools: these students are eligible for special education, and this special education should include the services they need in order to receive an adequate education.82 However, the Rowley Court narrowly interpreted the definition of services required for a FAPE. Instead of accepting the lower court's definition of a FAPE as "an opportunity to achieve [] full potential commensurate with the opportunity provided to other children,"83 the Rowley Court held that the FAPE standard requires that "access [] provided be sufficient to confer some educational benefit upon the handicapped child."84 Furthermore, the Court in Rowley held that a student's IEP must be "reasonably calculated to enable the child to receive [some] educational benefits."85

The Rowley holding reveals a major reason why IDEA challenges fail, especially for multi-disabled students at state special schools: FAPE does not require that an IEP provide the best education possible or grant services that maximize the student's learning abilities. Instead, public schools must provide a "basic floor of opportunity," which includes "access to specialized instruction and related services which are individually designed to provide educational benefit."86 In other words, under the IDEA and the Court's interpretation in Rowley, schools must provide an appropriate educational program tailored to meet the student's unique needs. This program-which, depending on the IEP assessment, could include specialized educational and related services-must provide the student with some educational benefit and conform to the IEP.

Although state special schools may be able to provide a better (or the best) educational experience because they are uniquely equipped to deal with blind and deaf children, the California state special school administrators argue that local schools already provide adequate services to meet the FAPE requirement. They argue that the schools are designed to help a specific type of student-in particular, the "pure" blind or deaf student-and forcing the schools to serve multi-disabled students would frustrate their core mission and the quality of education provided to their students. Under the Rowley standard, it is very difficult for parents to show that the state special school is the only place their child can receive a FAPE. Consequently, the state special schools do not have to accept multi-disabled students. Furthermore, the Supreme Court in Schaffer v. Weast perhaps made it even more difficult for parents of multi-disabled students by holding that the burden of proving that a FAPE includes services not provided by the IEP is on the shoulders of the moving party,87 in this case the parents of the multi-disabled students. In a post-Schaffer public school, proving that a child's IEP does not provide a FAPE is thus even more daunting.

4. Agency responsible for providing a FAPE

A second problem, specific to the state special school context, concerns state agency responsibility. The IDEA places the responsibility of providing special education and all related services in the IEP squarely on the local education agency (LEA), at no cost to the parent.88 The LEA may provide those services through other agencies, nonprofit organizations, or private service providers, but the ultimate responsibility for provision of those services rests with the LEA. In other words, although the State of California, special education local plan areas (SELPAs), and LEAs may choose to provide services through arrangements with non-LEA providers-such as the California State Special Schools for the Blind and Deaf-the IDEA does not shift the mandate of providing those services to the non-LEA providers; rather, it remains with the LEA. If the LEA fails to provide appropriate special education and related services, the state educational agency (SEA)-in this case, the California Department of Education-is required to monitor and ensure provision of those services.89

This unique relationship between the LEA and SEA arguably becomes even more complicated when a third state actor-i.e., the state special school-is included in the analysis. If a student is enrolled in a state special school for the blind or deaf, the LEA still has the legal mandate to provide a FAPE. Typically, the IEP team will meet to determine the services that are required to provide a FAPE and also the appropriate placement. If the IEP team decides that a state special school provides a FAPE-and the state special school confirms that it has the services to provide the particular student with a FAPE-then the student is placed at the state special school. The critical condition is that the state special school must agree to the placement.

Unfortunately, this condition is difficult to meet. Under the IDEA framework, most multi-disabled student requests for admission into California state special schools are unsuccessful.90 The state special schools explicitly state in their admission standards that they cannot provide a FAPE for most multi-disabled students because the schools neither currently accommodate students with severe cognitive delays or other mental or emotional disabilities nor are they currently mandated by state law to provide these services.91 So, these schools are not equipped with the specialized services needed to provide these students with a FAPE. In regular public schools (LEAs), this defense-that the school cannot provide a FAPE to these students because they do not have the appropriate specialized services-would never be persuasive. As the IDEA stipulates, LEAs must provide every student with a FAPE. If schools do not have the services available, they must either spend money to get them or fund placement at another facility that has them. However, because state special schools are not LEAs, but rather third-party state providers that tailor their missions and services to a specific subclass of students with disabilities, most IEP teams and courts have accepted this rationale.

Consequently, because California state special schools explicitly exclude multi-disabled students, it would appear that the only way for multi-disabled students to prevail under the IDEA is to demonstrate that the LEA indeed cannot provide a FAPE, that the SEA must therefore directly provide a FAPE in the least restrictive environment, and that the only location at which such a FAPE can be provided is a state special school. Accordingly, the SEA must enroll the child in a state special school (and the state special school would be obligated to accept the student) in order for the child to derive some benefit from the educational program. Further, the LEA must fund the placement,92 as well as provide for special education and related services that the state special schools do not currently provide.93

So, advocates for multi-disabled students have to look to educational practice and policy research in order to prevail under the IDEA. If local schools do not and cannot provide teachers with expertise in deaf or blind education, or do not and cannot provide access to the communicative technologies necessary for these students to benefit from their education, then arguably the placement would not provide a FAPE.94 The IDEA'S driving rationale of adequate access to FAPE comes into play: All students have a right to free appropriate public education. Although the state does not have to provide the best education possible, the IEP must be reasonably calculated to provide some adequate educational benefit. However, demonstrating school districts' inability to provide a FAPE is a daunting barrier for students like Holly P. How does Holly prove that no other public school in her district can provide a FAPE?95 This burden of proof is arguably much more daunting in a post-Schaffer (and a post-2004 reauthorization) public school, where it is clear that the parents have the burden of proving that the status quo does not constitute a FAPE-i.e., that the current public school placement cannot provide a FAPE.

B. The Complementary Section 504 Claim: A Federal Mandate To Provide Equal Treatment

Because the IDEA poses particular problems in the post-Schqffer state special school, advocates for multi-disabled blind and deaf students should "mov[e] beyond the more visible wave of litigation under the [IDEA]" and focus on "a second, and broader, generation of cases affecting public schools"96-claims brought under Section 504 of the Rehabilitation Act (Section 504).97 While the IDEA focuses on adequate access to FAPE, Section 504 emphasizes equal treatment and antidiscrimination.98 As such, Section 504 "is designed to eliminate discrimination on the basis of handicap in any program or activity receiving Federal financial assistance"99 and was created, in part, "to share with handicapped Americans the opportunities for an education."100 This unprecedented, one-sentence civil rights provision found its way into the last section of the Rehabilitation Act of 1973:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .101

Although the Rehabilitation Act was passed in 1973, it took another four years and a twenty-five-day sit-in at the San Francisco regional office of the U.S. Department of Health, Education, and Welfare-the longest such occupation ever of a federal building by political protestors-before Section 504's implementing regulations were promulgated in 1977.102 Once the regulations were in place, Section 504 became a powerful tool for combating disability discrimination in employment, as well as in preschool, elementary, secondary, and postsecondary education.

In contrast to the IDEA, Section 504 emphasizes equal treatment, not just access to FAPE.103 In other words, the drafters of Section 504 were not only concerned with Holly receiving a FAPE somewhere (as was the case with the IDEA), but also that a federally funded program does not treat Holly differently because she is not "pure" deaf. Under Section 504, a state special school cannot hide behind the justification that another public school might provide a FAPE; it must show that somehow Holly does not qualify for admission. Unlike the IDEA, Section 504 does not only look at what is FAPE, but also what is fair.

Consequently, a Section 504 challenge would generally focus on how multi-disabled students are excluded from a state special school for which they would otherwise be qualified-due to either their blindness or hearing impairment-solely because of their additional disability. And, due to this unequal treatment, the argument would proceed, multi-disabled students receive significantly less adequate educational benefits. To understand whether current California state special schools' admission policies that exclude multidisabled students violate Section 504, the statute's key terms must be understood. As will be demonstrated, this analysis provides a persuasive case that the status quo amounts to discrimination under Section 504, even though state and federal courts in California have yet to consider such claims.

1. Eligibility, part I: individual with disability and major life activity

Two key terms must be examined to determine if an individual is eligible for relief under Section 504: whether the person is an "individual with a disability" and whether the person is "otherwise qualified." For the purposes of discrimination in K-12 public education under Section 504, an "individual with a disability" is any person who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment."104 In other words, courts must make three distinct inquiries to determine whether the person is considered an "individual with a disability" for Section 504 purposes. First, the individual must have a physical or mental impairment or-in the alternative-have a record of such impairment or be regarded by others as having such an impairment. So, the individual need not necessarily have an actual physical or mental impairment, but only a record or appearance of such.105 Second, the impairment must limit a major life activity. Finally, Section 504 quantifies this limitation: it must be substantial.

In other contexts, this standard has been difficult to meet and has resulted in controversial rulings by the Supreme Court.106 However, with respect to Holly and other multi-disabled blind and deaf students at state special schools, there should be no controversy; the regulations explicitly include "seeing, hearing,. . . [and] learning" within the definition of "major life activities."1 7 Consequently, advocates must only prove that blindness, deafness, or some other disability "substantially limits" these multi-disabled students' ability to see, hear, or learn.

2. Eligibility, part II: otherwise qualified individual

To be eligible for Section 504 relief, an individual with a disability must also prove that she is "otherwise qualified."108 In the K-12 context, this should not be problematic. Section 504's implementing regulations define "qualified handicapped persons" as:

[w]ith respect to public preschool, elementary, secondary, or adult education services, a handicapped person (i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under [the IDE A]....109

Under this definition, the typical multi-disabled blind or deaf student is eligible for relief under section 504. Indeed, any public school-aged child is otherwise qualified. The section 504 regulations cast a very wide net for eligibility.

However, it should be noted that one court (and to date, the only court to address this issue) has deemed a multi-disabled student as not "otherwise qualified" under section 504. In Eva N. v. Brock, a federal district court in Kentucky found that Timmy, a blind student with profound mental retardation, was not otherwise qualified because the Kentucky School for the Blind was "designed for those visually handicapped who would be classified at least as 'trainable' mentally handicapped. Unfortunately, Jimmy's handicaps are far too profound for such a classification."1 ' ' This situation appears to be the very definition of "otherwise qualified" in that, but for the student's additional disabilities, this multi-disabled blind student would have been accepted into the state special school for the blind. However, the district court ruled otherwise. Similar findings have been made in other contexts."2

Such arguments are also found in California administrative law decisions, but under IDEA challenges, not Section 504 actions. For instance, in one Kelseyville School District case, the special education hearing officer ruled that a multi-disabled blind student could not attend California School for the Deaf (CSD) because he did not meet the admission qualifications and because CSD would not offer an appropriate placement for the student." The hearing officer emphasized behavioral problems, as well as the need for custodial placement, as the reasons why the student did not qualify for the school.114 More importantly, the hearing officer remarked in a footnote:

The Superintendent of Public Instruction determines the admission criteria to the CSDF. The Hearing Officer makes no finding as to whether the CSDF's admissions criteria were properly developed. The Hearing Officer notes that the posture of the California Department of Education through the Schools for the Deaf that it has no obligation to serve deaf children with disabilities unless mild, appears discriminatory. Both State and federal law preclude exclusion of individuals who, with reasonable modifications, including provision of auxiliary aides and services, meet essential eligibility requirements for participation in programs funded by the State.115

In other words, because this was an IDEA claim and not a section 504 action, the hearing officer took the established admission criteria as the FAPE qualifications standard without evaluating whether the student was otherwise qualified under section 504. In the opinion's footnote cited above, the hearing officer is seemingly calling for multi-disabled students to challenge CSD admission policies under Section 504. In California, no such child has filed a Section 504 action to date.

More importantly, the Kentucky challenge to the "otherwise qualified" requirement apparently overlooked (or ignored) the implementing regulations of Section 504,116 which define "qualified handicapped persons" to include all students who qualify for K-12 education more generally.117 Because section 504 regulations cast a very wide net for eligibility, the typical multi-disabled blind or deaf student is clearly eligible for relief under Section 504.

3. Any program or activity

The next important term concerns "any program or activity." Similar to eligibility, Section 504 casts a very wide net with respect to programs and activities covered, including any "local educational agency . . . , system of vocational education, or other school system" that receives federal funding.118 Consequently, Section 504 covers a broad scope of activities that clearly includes the activities of California state special schools.119

4. Reasonable accommodations or the OCR standard

The final condition-that of the level of accommodation required-is perhaps the most controversial and widely debated Section 504 concept among practitioners, policymakers, and academics. There exist two divergent interpretations concerning the level of accommodations mandated by Section 504 in the K-12 public school context: the minority standard that emphasizes "reasonable accommodations" and the majority standard established by the U.S. Department of Education's Office of Civil Rights (OCR) and codified in Section 504's implementing regulations,120 which emphasizes affirmative duties and FAPE and rejects the notion of a reasonable accommodations limitation to K-12 educational services.

In employment discrimination cases brought under Section 504, courts apply a limiting standard of "reasonable accommodations" to evaluate whether a business must accommodate individuals with disabilities.121 This reasonable accommodations standard stipulates that accommodations should be made unless such changes result in "undue hardship" to the particular business, making such accommodations "unreasonable."122 This standard has been confined primarily to the commercial context-indeed, it is not present in the section 504 implementing regulations for K-12 education123-but some courts have extended it to the higher education context.124

Although the Supreme Court has generally applied this extension only to higher education institutions,125 one district court case is particularly on point. In Eva N. v. Brock,126 the same case discussed in Part II.B.2, a student who was blind and profoundly mentally disabled sought admission to the Kentucky School for the Blind. To accommodate the student's mental disability, the school would have been required to alter its mission and programs and to hire additional faculty with qualifications beyond those usually required to teach students independent living skills. The district court determined that requiring the school to alter its programs to accommodate the student would not be reasonable.127 To reach this decision, the court relied on questionable precedent from the employment context, as well as the higher education context, and did not discuss the fact that the reasonable accommodations standard purposefully does not appear in the section 504 regulations for K-12 public schools.128 Instead, the court seemed to ignore the regulations. The Sixth Circuit affirmed the decision without issuing an opinion.12 This holding has not been extended to other cases with similar fact patterns, nor has any other circuit adopted this standard for special education in K-12 public schools.130 Indeed, this issue is one of first impression for California courts.131

If the reasonable accommodations standard were applied to the K-12 context, the state special schools would have a very strong argument against admission of multi-disabled students because the schools would have to fundamentally alter their mission statements and services. Such modifications would arguably be unreasonable and pose an undue burden on the schools.132 The Third Circuit's decision in Easley v. Sniderm would be strikingly on point if the reasonable accommodations standard was extended to the K-12 context. In Easley, multi-disabled adults brought a Section 504 action against the Pennsylvania Attendant Care Program because they were excluded from the program solely because they were not mentally alert. The program only admitted physically handicapped but mentally alert individuals.134 The Third Circuit held that "the use of surrogates by the non-mentally alert physically disabled is not a reasonable modification of the Pennsylvania Care Services Act" and thus excluded the multi-disabled individuals from the federally funded program.135

Fortunately for Holly P. and other multi-disabled blind and deaf students, the reasonable accommodations standard constitutes the minority view in the K-12 public school context. The majority and more favorable standard for multi-disabled students is put forth by the U.S. Department of Education's Office for Civil Rights (OCR).136 In a now-famous 1993 OCR response letter to Professor Perry A. Zirkel, the OCR reinforced its interpretation of section 504 regulations for K-12 public schools:

The key question in your letter is whether OCR reads into that section 504 regulatory requirement for a free and appropriate public education (FAPE) a "reasonable accommodation" standard, or some similar limitation. The clear and unequivocal answer to that is no. section 104.33(a) guarantees all qualified individuals with disabilities FAPE ....

. . . Thus, I believe that the FAPE requirement in the section 504 regulation does reflect congressional intent. Since that time there have been no actions by the Congress, the Federal Courts, or the agencies and administrative tribunals of the executive branch that would require OCR to modify 104.33, or its interpretation thereof, to allow for some limitation of the FAPE guarantee.137

In essence, the OCR alternative excludes any accommodations limitation to Section 504 in the public school context because of the parallel doctrine of the IDEA-i.e., that all students must benefit from a FAPE regardless of what is reasonable. The OCR sets forth affirmative duties for public schools, which parallel those duties outlined under the IDEA, with respect to Section 504-eligible students.138 The duties to provide a FAPE and residential placement go beyond "reasonable accommodations" in the commercial context.

As the OCR letter to Professor Zirkel indicates, the OCR explicitly rejects the reasonable accommodations standard for Section 504 public education claims. The driving rationale is that providing a FAPE at a public school, by definition, almost always requires "unreasonable accommodations."139 It should be noted that commentators have heavily criticized the OCR standard-noting that it violates administrative lawmaking,140 creates an unreasonable and unfunded mandate,141 and calls for a musts better balance to be struck.142 Notwithstanding, under the Section 504 implementing regulations and the OCR interpretation, K-12 public educational institutions must make whatever accommodations necessary to provide FAPE and cannot discriminate against an "otherwise qualified individual . . . solely by reason of her or his disability."143 The OCR continues to stand behind this interpretation, and no administrative law challenges to the Section 504 regulations have been brought in state or federal courts.144

The Section 504 analysis is quite straightforward, though its application to the state special schools is far from clear because it is an issue of first impression in California and almost all other states (Kentucky excluded). In summary, a court must first evaluate whether the individual has a disability and whether she is otherwise qualified. In the state special school context, this determination should be uncontroversial; multi-disabled students are being excluded from the schools explicitly because they are disabled. second, a court must evaluate whether the discrimination takes place in a program or activity receiving federal funding. In this case, the law explicitly includes all LEAs, school systems, vocational schools, and any department of the state that distributes educational assistance.145 Third, the section 504 standard evaluates whether these students receive "commensurate benefit" in their LEAs and, depending on the courts' interpretation of section 504, whether the necessary changes to the state special schools would be considered "reasonable accommodations." The multi-disabled students' section 504 claim would be extremely strong in California unless the court applied the reasonable accommodations restriction. If a court did require only reasonable accommodations in the public school context, this analysis would turn to a cost-benefit analysis.146

Consequently, section 504 challenges would focus on how multi-disabled students are excluded from a state special school program for which they would otherwise be qualified-due to either their blindness or hearing impairmentsolely because of their additional cognitive or emotional disability. And, as a result of this unequal treatment, the argument would proceed, multi-disabled students receive significantly less educational benefit in their local schools than they would in the state special school. In other words, Holly might be able to receive a FAPE (barely, or at least it would be hard to prove otherwise under the IDEA) in her local school placement, but she would receive a much better education in the state special school. Due to CSD's discrimination against her because of her additional disabilities, she is the victim of unequal treatment (in comparison to her "pure" deaf peers) by a federally funded institution. This case is a classic example of a Section 504 violation: federally funded schools cannot choose who they serve (and do not serve) based solely on disability.

As this Part illustrates, multi-disabled students should have a much stronger claim under Section 504 than under the IDEA because Section 504 mandates that no federally funded program discriminate based on disability. It not only evaluates whether the students receive adequate access to a FAPE, but it also looks specifically at the government program's discriminatory practices. If it does discriminate, the program must prove that it provides a commensurate opportunity elsewhere.

III. BEYOND STATE SPECIAL SCHOOLS: THE IDEA AND SECTION 504 IN A POST-SCHAFFER PUBLIC SCHOOL CONTEXT

Now that both the IDEA and section 504 claims for multi-disabled blind and deaf students against state special schools have been presented, this Part looks beyond these findings in this context to better understand how to utilize the IDEA and section 504 in post-Schqffer public schools generally. As evidenced in Part II, the overall comparison of the IDEA and Section 504 is complicated but important in that they often accomplish similar objectives, but by using different instruments and driving principles. This comparison has often been neglected (or at best treated "once over lightly"147) by policymakers and academics.1 However, there has been some analysis. For instance, one court analogized that Section 504 is a "bludgeon to the IDEA's stiletto, protecting a broader swath of the population without describing a precise manner of compliance."149 Another commentator noted that the "IDEA is like Crater Lake, and Section 504 is like the Okefenokee Swamp."150 These philosophic differences explain why and how these legal tools have been applied differently and also allude to why they should be considered in tandem with respect to multi-disabled students and state special schools, as well as in other special education contexts.

As explained in Part II.A, the IDEA was created in the 1970s in response to growing concerns that children with disabilities were not receiving free appropriate public education (FAPE). By the mid-1970s, public K-12 education had emerged within the policymaking arena as a universal right, to which America's future was guaranteed at least a FAPE. Granted, children are not guaranteed the best education available under the IDEA, but Congress had to establish a lower boundary so that all students received some level of benefit from public education. The IDEA'S driving rationale is adequate access to a FAPE-with particular emphasis on children with disabilities.

Conversely, Section 504 combats discrimination against individuals with disabilities. While Section 504 emerged at roughly the same time as the IDEA and in response to generally the same issue-disparate treatment of individuals with disabilities-Congress was more concerned with equal treatment in federally funded programs, not adequate access to a FAPE. Consequently, Section 504 is as much a civil rights act as it is an equal-access-to-education statute.151 One commentator clearly explains this rationale for Section 504:

Physically and mentally handicapped citizens suffer more discrimination than any minority group in the nation. Society has historically separated handicapped citizens from the rest of the population by assuming that nothing can be done to help the handicapped. Non-handicapped Americans are generally insensitive to the difficulties faced by the handicapped and fail to realize the contributions that handicapped persons could make to society. These misconceptions have led to continuing discrimination against this large but forgotten segment of the population.152

Congress intended that the IDEA guarantee a FAPE for children with disabilities, but its intent behind Section 504 reached beyond FAPE to systemic reform, in that any program or activity funded by the federal government should not treat these individuals unequally based solely on their disabilities. This antidiscrimination statute protects individuals with disabilities from disparate treatment, while also reversing historical misperceptions about individuals with disabilities-thus lessening the social stigma. Therefore, the rationales of the IDEA and Section 504 differ greatly as do their standards and provisions. Table 1 provides a detailed comparison of these two legal tools.153

In addition to the substantive comparison between the IDEA and Section 504 outlined in Table 1 and further detailed in Part II, several useful empirical comparisons have been undertaken.154 For instance, one commentator found that parents in a variety of special education contexts won Section 504 cases 55.0% of the time,155 as opposed to a general 45.7% success rate under the IDEA.156 Thus, the commentator concluded:

[T]o the large extent that sec. 504 overlaps with the IDEA and that OCR accounts for the bulk of these rulings, filing a complaint with this agency not only offers easier access in terms of parent input but also better odds in terms of decision-making outcome than does the judicial [IDEA] avenue.157

If parents are more successful with Section 504 than the IDEA,158 why aren't they used more frequently? For instance, in the California state special school context, parents of multi-disabled students have only brought IDEA challenges against the state special schools. Section 504 actions have not been brought, even though one special education hearing officer explicitly urged the parents to do so.159 Perhaps Section 504's lack of use is due, in part, to the fact that it is a much blunter legal instrument, with less clear guidelines for evaluation, than the IDEA. Additionally, Section 504 looks at the government program as a whole and requires policy answers with respect to costs and benefits of programs offered by LEAs in comparison to those at the state special schools. This type of analysis might often require a collaborative effort and considerable resources. Conversely, IDEA challenges can be, and often are, taken on a case-by-case basis-evaluating whether the LEA can provide a FAPE and, if not, whether the special school provides a FAPE. As illustrated in Part II, these actions are easier to bring but also easier to lose.

Professor Tyce Palmaffy provides another potential rationale for why Section 504 did not have the same effect as the IDEA at its outset and why it continues to have a weaker effect today:

[P]assing a civil rights law is one matter; enforcing it is another. [Section 504 of the] Rehabilitation Act gave disabled children certain rights, but not the funds to encourage and help schools to identify, evaluate, and serve all disabled children, or to set up the kinds of due process protections specified by the laws.160

Furthermore, recall that, while Congress passed Section 504 (in 1973) before the emergence of the IDEA (in 1975), Section 504 regulations were not promulgated until 1977-and even then not until after a twenty-five-day sit-in and significant public pressure from the disability rights community.161 So while the IDEA is a well-funded and "well-regulated program,"162 Section 504 may be less utilized in special education because it is a one-sentence, unfunded civil rights statute that struggled for years to even gain enforcement regulations. Perhaps special education attorneys and advocates merely do not understand Section 504 or the difference between Section 504 and the IDEA.163

This misunderstanding is arguably the driving reason for Section 504's absence in the state special school context, as well as its neglect in special education law more generally. While IDEA challenges to state special school admission decisions are commonplace, Section 504 actions have not been tried in California or in most other states. And they should be. IDEA claims are also almost uniformly unsuccessful in the state special school context (and empirically less successful overall).1 Conversely, the Section 504 claim is potentially quite powerful in the state special school context and K-12 special education cases more generally-especially because the K-12 implementing regulations reject the reasonable accommodations standard used in other Section 504 contexts.165 Most importantly, special education attorneys and advocates do not have to choose between Section 504 and the IDEA: they can and should bring both claims in unison. As demonstrated in Part II, these statutes focus on different principles (adequate access to FAPE versus equal treatment), but the principles and claims complement and reinforce each other. And both principles play an important role in special education today.

CONCLUSION

Although the Supreme Court's decision in Schaffer v. Weast166 was not particularly surprising, the majority's opinion-as well as the dissents and amicus briefs-illustrates the obstacles that parents must overcome when challenging a school's decision under the IDEA. Congress's 2004 IDEA reauthorization has arguably made the playing field even more unequal,167 though final regulations have yet to be published. Furthermore, the state special school context illustrates how the IDEA often does not cover certain types of discrimination: the IDEA focuses on guaranteeing adequate access to a FAPE, when in many cases parents are just as concerned that their children were treated unequally-and that other children with similar needs might likewise face discriminatory practices. In those situations, such as the case of Holly P., the IDEA does not produce a satisfactory result.

However, as the state special school context illustrates in Part II, Section 504 is a powerful, though oft-neglected, complement to the IDEA if it is understood and applied correctly-clearly more powerful and effective than the IDEA alone. Whereas the IDEA focuses on adequate access to FAPE, Section 504 emphasizes equal treatment within federally funded programs. In the state special schools context, neither standard alone accurately depicts the principles at play; instead, we must understand both standards and how they interact to better understand how to address discriminatory practices that inhibit multidisabled students from receiving a FAPE in a state special school. Special education attorneys should use both tools in the state special school context to reverse these exclusionary practices.

More generally, Section 504 is a powerful tool, and excellent complement to the IDEA, outside the state special school context. As one group of commentators notes, policymakers and attorneys should look beyond "today's 'one-size-fits-air IDEA mandates and procedures" to use "Section 504 as a 'safety-net' to guard against discrimination."168 This Note has sought to do just that-to help policymakers and attorneys better understand how to utilize both Section 504 and the IDEA in order to make sure that no child is left behind or otherwise excluded from educational opportunities solely on the basis of a disability. This understanding is particularly important for special education attorneys and advocates as they attempt to look beyond the IDEA in a postSchaffer public school.