Students at whiter, wealthier schools have more access to federal disability protections

By: - June 15, 2021 11:09 am

Dolores Tropiano, left, and her son Dante Butzeberger stand outside their home in Scottsdale, Arizona on June 3, 2021. (Photo by Alberto Mariani for AZCIR)

Arizona Center for Investigative ReportingPHOENIX — When two police officers found Dante Butzberger sitting in a walk-in closet at his family’s Scottsdale home, the 14-year-old refused to leave. Dyslexia and ADHD had made his time in eighth grade so miserable that not even the police could convince him to attend school.

His mother, Dolores Tropiano, had called police out of frustration—and desperation. Her son hated middle school, and faculty wouldn’t provide the extra in-class help she knew he needed.

Left with no other options, Butzberger’s mother contacted an attorney to force the Scottsdale Unified School District into action. It worked.

The teenager got the help he needed in the form of a 504 plan, a federal civil rights protection designed to give students with disabilities equal access to public education. The plans are typically for students who don’t qualify for special education but have conditions such as ADHD or anxiety that still interfere with learning. Plan benefits range from extra time on exams to less homework, and 504s can even shield students from expulsion.

“The double time on tests was the most helpful thing I ever received,” said Butzberger, now 18 years old and an incoming high school senior. “If I was rushing to do all those tests, I do not see myself being as successful as I was.”

But getting the plans in Arizona isn’t always easy, or equitable, an AZCIR analysis of state and federal election data shows. Shortcomings at the federal, state and school level make securing a 504 plan easier for students who attend schools that are wealthier and whiter. The disparity gives an advantage to families that can spend time and money advocating on their children’s behalf, while potentially limiting equal access to education for low-income students of color.

The nearly 15,000 students with 504 plans in Arizona’s traditional public—or “district”—schools represent about 1.6% of the student population analyzed. But the rate varies greatly depending on the school.

At Catalina Foothills High School, surrounded by multi-million dollar homes in a suburb north of Tucson, one in 10 students have 504 plans. That rate drops to less than one in 100 students at the poorest schools in the state, like Trevor Browne High School in Phoenix, where 96% of students come from low-income families.

Across Arizona, students are half as likely to have a 504 plan if they attend the state’s poorest district schools, where at least 75% of students are eligible to receive free or reduced lunch. Those students are 3.5 times less likely to have the plans when compared to their peers at the state’s wealthiest district schools, where less than 25% of students qualify for low-cost lunch.

Similar trends exist along racial lines. The 504 rate among majority-white district schools is 2.5%, more than three times that of schools where students of color comprise at least 75% of enrollment.

“Quite simply, [504 plans] can mean the difference between passing and failing. It can mean the difference between graduating high school and not graduating high school,” said Christopher Tiffany, the executive director at Raising Special Kids, an Arizona organization that provides help for children with disabilities and their families. “Accommodations for students with disabilities are extremely important. Without them, they simply will not do as well or fail.”

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AZCIR’s analysis used civil rights data collected by the U.S. Department of Education from the 2017-2018 school year, the most recent data available. Nearly 1,300 traditional public schools, representing about 80% of the state’s public school students, were included in the analysis. AZCIR excluded specialized education facilities and charter schools.

Dozens of AZCIR interviews with parents, school and district faculty, education experts, lawyers and disability rights advocates reveal that the disparities are a consequence of longstanding, systemic failures that stretch from the U.S. Department of Education to Arizona classrooms.

Schools are required to evaluate students who they suspect may have disabilities and need services regardless of whether they received a parent request, but experts said schools rarely do so.

Because 504 plan enforcement falls solely to the federal government, the Arizona Department of Education isn’t required to hold schools or districts accountable. The U.S. Department of Education most often relies on parent complaints to prompt enforcement, rarely taking proactive action.

Parents, who are often unaware of the civil rights protection, are left to take on the role of education expert and disability law advocate—or spend thousands of dollars on professionals who will.

“If a mom has to work full time, she’s not going to learn anything about that,” Tropiano said. “What breaks my heart is that there’s got to be a million single moms out there that are working to support their family. There’s no way they could do what I did.”

Knowledge gaps among parents, educators hinder 504 law

A “504 plan” is the term most often used to describe services provided under Section 504 of the Rehabilitation Act of 1973, a broad federal law that prohibits discrimination against people with disabilities in federally funded institutions. In public schools, 504 protections complement a separate, more education-specific law called the Individuals with Disabilities Education Act, or IDEA.

IDEA requires public schools to provide special education services through a legal document called an Individualized Education Program, or IEP, which comes with extra federal funding. The IEPs are typically reserved for students who have disabilities like autism or Down syndrome that can have a significant impact on learning, so not all students with disabilities can qualify.

504 plans help fill that gap, but they don’t come with extra funding. Administrators must pay for 504 services out of the district’s existing budget.

“504 is an unfunded mandate. There’s no money for 504 kids, which I think is one of the reasons that Arizona is low overall,” said Perry Zirkel, a national education researcher and professor of education and law at Lehigh University in Pennsylvania. “You don’t have a lot of money for general education in the first place and thus, you’ve got less latitude if you’re a school administrator to offer the kinds of services and accommodations that these 504 kids would get.”

In Arizona, where public school spending ranks the third lowest among all states according to 2019 U.S. Census data, proactive 504 plan policies could be a drain on already limited district resources. AZCIR’s analysis shows Arizona’s rate of 504 plans—1.6%—is among the lowest in the U.S., placing it in the bottom third of all states.

Experts said parents are more often familiar with special education under IDEA but don’t necessarily understand how 504 plans are different, or that they are an option. Tropiano, for example, spent months researching the disability protection.

“I had to study the laws. I had to study dyslexia. I had to study ADHD. I had to study what kind of accommodations they could get,” Tropiano said. “Yeah, it was exhausting.”

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Section 504 is designed to circumvent the parent knowledge gap by requiring schools to identify students who might need 504 services in a process known as “child find.” District officials are supposed to inform parents about the process, and seek permission before initiating a formal evaluation.

“The district has an obligation under child find to evaluate all students whom they suspect might have a disability,” said Susan Marks, an Arizona-based education attorney who helps parents gain access to services for their children. “But the parents don’t know that they should. It’s like the district won’t do anything unless the parent requests an evaluation, and the parents may not know they can ask for that.”

On-the-job experience with 504 plans can help teachers better understand their responsibilities. If teacher training or district communication about expectations is limited, educators might not know how to comply with the civil rights law. The same is true if they gain experience in schools where 504 plans are rare.

“Parents should just be able to send their kids to school, and the school should be saying, ‘We observed your child struggling, what’s going on? Let’s have a meeting, let’s have an interactive dialogue and understand if there’s something different we need to do to support your child.’ That almost never happens,” said David Jefferson, the founder of Parent Support Arizona, a for-profit advocacy organization that helps parents who have children with disabilities.

Navigating 504 laws easier for parents with means

Without guidance from educators, accessing 504 plan information can be more difficult for parents who don’t have the time to research the civil rights law, are not proficient in English or lack access to professionals, like doctors or advocates, who are educated on the process.

Amy McSheffrey, a school board member at Creighton Elementary School District in Phoenix, said these issues all factor into the low rate of 504 plans in the district. CESD students are half as likely to have a 504 plan than the general student population in Arizona’s district schools, and the vast majority of them come from low-income families.

“Parents don’t know their rights, and if you are at all already disenfranchised, say you’re an immigrant or English is your second language or you don’t speak English at all, I think that obviously would make it much more challenging to get the services for your child,” McSheffrey said.

McSheffrey’s son, who attended classes outside Creighton, needed a 504 plan when focusing became increasingly difficult in fifth grade. When the school provided little guidance, McSheffrey turned to a doctor specializing in learning disabilities who diagnosed her son with ADD and anxiety. The diagnosis helped him qualify for a 504 plan, but it took a nudge from a friend who knew people within the school to finally get it approved.

If parents can afford them, attorneys are another option. They can attend school meetings, guide families through the 504 process and even sue districts to prompt action.

Tropiano hired Susan Marks when her son was denied 504 accommodations at Cocopah Middle School in Scottsdale Unified School District, a wealthy district with one of the highest rates of 504 plans in the state. Tropiano said the district provided an “extensive” 504 plan soon after Marks contacted them, also paying her attorney’s fees as part of a settlement agreement.

Shannon Cronn, the director of support services at SUSD, said faculty are trained to inform parents about the law and provide the plans when students need them, though she acknowledges that lawsuits are a driving factor for enforcement.

“Scottsdale is a pretty litigious district, so we make sure we’re following all 504, IDEA laws,” Cronn said. “People here know their rights.”

Without official plans, students can lose important protections

Schools aren’t required to produce written plans under Section 504 of the civil rights law. They can meet their obligations by providing unofficial help, which may not be reported to the federal government’s data collection, meaning a lack of reported 504 plans doesn’t necessarily indicate a violation.

But experts said parents without formal documentation have less recourse if the school doesn’t provide services, and accommodations could be inconsistent across classes. Students may also face life-altering punishments such as expulsion if their disability isn’t formally recognized.

504 plans shield students against expulsion for disability-related misbehavior that may be outside their control. Data suggest those protections are effective: Arizona students with 504 plans are four times less likely to be expelled than those without a recognized disability.

“I’ve seen some kids who have gotten expelled, and I had wondered, if the family had the means, whether they could have intervened and maybe gotten their child on a 504 plan and protected the child from being expelled,” said Susan Marks, the education attorney. “I’ve seen them as young as 10 years old expelled—that means no education at all.

Federal enforcement, state action lacking

While providing appropriate services under the 504 law doesn’t come with extra money, the penalty for noncompliance can mean the loss of federal funding entirely if a school or district doesn’t resolve the problem.

The U.S. Department of Education’s Office for Civil Rights, the agency tasked with enforcing the 504 law, rarely issues that penalty or launches proactive compliance investigations. Oversight is most often driven by complaints made by parents.

“My constant frustration as a special education lawyer is that both systems, IDEA and 504, are really reliant on parents and students complaining, because essentially they’re the ones who enforce the law,” said Amanda Glass, an attorney with the nonprofit Arizona Center for Disability Law.

Hundreds of Arizona schools violate federal law by reporting inaccurate civil rights data

Since 1984, the education department’s Office for Civil Rights has initiated around 200 investigations nationwide targeting educational institutions that may not have provided “free appropriate public education,” the requirement under Section 504 that mandates services. They represent the only such investigations that were not prompted by outside complaints.

Seth Galanter, former Principal Deputy Assistant Secretary at the Office for Civil Rights under former President Barack Obama, said staff and funding resources limit the federal agency’s ability to effectively enforce the 504 law. Collaboration with state agencies could increase accountability and make 504 services more accessible to students in Arizona, he explained.

“Every state has its own office of special education that monitors school districts for compliance with the IDEA. It’s not, I am thinking, a huge lift to add 504 to that,” said Galanter, who is now the senior director for legal advocacy at the National Center for Youth Law, a national non-profit firm that advocates for changes to public agencies on behalf of low-income children in the U.S.

The Arizona Department of Education isn’t required to monitor or enforce the 504 law. State officials don’t collect data on the plans or investigate parent complaints specific to 504s, instead referring families to resources available outside of the department.

“It is very likely that [ADE has] received issues from parent complaints around 504, but likely if it doesn’t connect to IDEA then action isn’t taken by the department,” said Kate Wright, chief of staff for the Arizona Department of Education.

ADE officials acknowledge the need to address barriers that prevent access to 504 plans and other educational services, especially in underserved communities. Richie Taylor, an agency spokesperson, said they are in the “early planning stages” of addressing the issues, adding that the department intends to use federal relief funding to support parent engagement.

Dante Butzberger, who still has a 504 plan and enters his senior year of high school in fall 2021, was grateful to have a parent able to fight for his access to education. He now plans to apply for college at Arizona State University to study business.

“I know I’m lucky,” Butzberger said. “I’m so thankful [my mother] was there to advocate for me because without all that help and without her, I would not have been as successful as I was.”

This story was published by Arizona Center for Investigative Reporting under a Creative Commons license with the headline “‘504 plan’ disability protection favors students at Arizona’s wealthier, whiter schools.” 

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Sam Kmack/AZCIR
Sam Kmack/AZCIR

Sam Kmack is an investigative reporter for AZCIR, covering a range of topics across Arizona for a yearlong fellowship supported in part by the Poynter-Koch Media and Journalism Fellowship. He’s a recent graduate from the Annenberg School for Communication and Journalism at the University of Southern California. While at USC he was an editor at the university’s student-lead newsroom, Annenberg Media, where he oversaw coverage of South L.A. In 2019 he worked on The Beacon Project, USC’s award-winning student investigative reporting team, where he reported on topics such as the admissions scandal and inequities in disability accommodations for the SAT. His work has been published in LAist, Annenberg Media and Intersections South L.A.

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