Section 504 Enforcement Options
Right to file a lawsuit
This is part four of our six-part series on Section 504 enforcement options. Today, we will be discussing private lawsuits.
You may file a private lawsuit under Section 504 or Title II of the ADA in state or federal court. You can also file a lawsuit under AzDA in Arizona state court, or in federal court if you are also bringing a federal law claim, such as Section 504 or ADA. The fee to file in federal court is $405.00, not including service fees, attorney fees, or other costs. The fee to file in Arizona state court varies by county, but the base fee is $222.00. Based on your income, you may be able to apply for a fee deferral or waiver from the state court or federal court.
There is a two-year statute of limitations from the date of alleged discrimination. If your child qualifies under both Section 504 and the IDEA, you may face challenges to your lawsuit because of something called “administrative exhaustion.” If you are seeking a remedy that is not available under the IDEA, such as monetary damages, you are not required to exhaust administrative remedies before suing. If, however, you are seeking a remedy that is available under the IDEA (injunctive relief and/or compensatory education), exhaustion of IDEA administrative remedies will be required if the student in question qualifies under IDEA as well as 504. We recommend that you consult with an attorney to determine whether IDEA exhaustion requirements apply to your situation.
Emotional distress damages are not available for Section 504 claims—monetary damages will be limited to “actual” damages, meaning costs you actually incurred as a result of the discrimination. Emotional distress damages may be possible under ADA and are definitely available under AzDA in the limited situations where AzDA applies—physical inaccessibility, service animals, and mobility aids. To be awarded monetary damages, you will have to prove the discrimination was intentional, which can be satisfied by showing the school acted with deliberate indifference.
In our next post, we will discuss the option to file a complaint with the Office for Civil Rights (OCR).
