Hello. Please sign in!

Nondiscrimination in Federally Assisted Programs: Policy Interpretations

SECTION 504 OF THE REHABILITATION
ACT OF 1973

POLICY INTERPRETATION NO. 6

SUBJECT: School board members as hearing officers.

POLICY INTERPRETATION: School board members may not serve as hearing officers in proceedings conducted to resolve disputes between parents of handicapped children and officials of their school system.

DISCUSSION: The section 504 regulation requires school districts to establish a "system of procedural safeguards" to protect against errors in the educational programs developed for handicapped students. One requirement of that system is an "impartial hearing * * * and a review procedure" through which a parent may contest the evaluation and placement of his or her child.

Recipients have asked whether school board members may serve as the hearing or reviewing authority in their own school district. The Department has concluded that this practice is inconsistent with the regulation's requirement of "impartial" proceedings. School board members have a clear interest in the outcome of the hearing. For example, determinations adverse to the parents will often avoid additional expenditures by the board. Also, the school board has hired, and therefore expressed confidence in, the judgment of the professionals challenged in the hearing. Moreover, since the Department will generally not review individual placement and other educational decisions of a school district if the "system of procedural safeguards" is in place, every precaution must be taken to ensure that those procedures operate fairly.

This interpretation is also supported by our commitment to coordinate section 504 procedural safeguards with those established by the Office of Education under the Education of the Handicapped Act. The regulations issued under that statute, as interpreted by the Office of Education, bar school board members from serving as hearing officers in their school system.

COVERAGE: This policy interpretation applies to any public or private institution, person, or other entity that receives or benefits from HEW financial assistance. For further information, see definition of "recipient" at 45 CFR 84.3(f).

AUTHORITY: Regulation issued under section 504 of the Rehabilitation Act of 1973, 45 CFR 84.36 and Appendix A thereto.

Section 84.36: A recipient that operates a public elementary or secondary education program shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.

   Appendix A. Subpart D (Fifth Paragraph): It is not the intention of the Department, except in extraordinary circumstances, to review the result of individual placement and other educational decisions, so long as the school district complies with the "process" requirements of this subpart (concerning identification and location, evaluation, and due process procedures) * * *.

Regulations Issued Under the Education of the Handicapped Act, 45 CFR 121a.507 and Appendix A Thereto.

   Section 121a.507: (a) A hearing may not be conducted:

   (1) By a person who is an employee of a public agency which is involved in the education or care of the child, or

   (2) By any person having a personal or professional interest which could conflict with his or her objectivity in the hearing.

   (b) A person who otherwise qualifies to conduct a hearing under paragraph (a) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer. . . .

   Appendix A. Subpart E ("Response" to "Comment" on Section 121a.507): [A] parent of the child in question and school board officials are disqualified under § 121a.507.

[MORE INFO...]

*You must sign in to view [MORE INFO...]