C.F.R. » Title 34 » CHAPTER I—OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION › PART 104—NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE › Subpart A—General Provisions

34 C.F.R. § 104.4

Discrimination prohibited

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(a) General. No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.

(b) Discriminatory actions prohibited. (1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;

(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipients program or activity;

(vi) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or

(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

(2) For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.

(3) Despite the existence of separate or different aid, benefits, or services provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such aid, benefits, or services that are not separate or different.

(4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.

(5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections (i) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives Federal financial assistance or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons.

(6) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part, with Federal financial assistance.

(c) Aid, benefits, or services limited by Federal law. The exclusion of nonhandicapped persons from aid, benefits, or services limited by Federal statute or executive order to handicapped persons or the exclusion of a specific class of handicapped persons from aid, benefits, or services limited by Federal statute or executive order to a different class of handicapped persons is not prohibited by this part.

[45 FR 30936, May 9, 1980, as amended at 65 FR 68054, Nov. 13, 2000]
Notes of Decisions
Cited in 60 cases (13 in the last 5 years), 1982–2026 · leading case: Jill Babcock v. State of Mich., 812 F.3d 531 (6th Cir. 2016).
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Jill Babcock v. State of Mich., 812 F.3d 531 (6th Cir. 2016). · cites it 2× “”); 34 C.F.R. § 104.4 (b)(5) (prohibiting recipients of federal financial assistance from selecting the “site or location of a facility” that has the “effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under…”
Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010). · cites it 2× “§ 794 (a); see also 34 C.F.R. § 104.4 . If an organization that receives federal funds violates Rehabilitation Act § 504 intentionally or with deliberate indifference, it may be liable for compensatory damages.”
Traci Berardelli v. Allied Servs. Inst. of R, 900 F.3d 104 (3rd Cir. 2018). “" 34 C.F.R. § 104.4 (b)(1)(i). It has also advised informally that such schools have an obligation to make "reasonable modifications," which "applies under both Section 504 and [the ADA]," and that it views the terms "reasonable accommodation and reasonable modification…”
Alexander v. Choate, 469 U.S. 287 (1985). “8 (a)(6) (DOD) (1984); 34 CFR § 104.4 (b)(4) (Dept, of Ed.) (1984); 38 CFR § 18.”
Georgia State Conf. of Branches of Naacp, Mary Alice Covin, Mary Laurant, Sylvia Dennis, & Naomi Tucker v. State of Georgia, 775 F.2d 1403 (11th Cir. 1985). · cites it 2× “We need not decide whether a showing of disparate impact is sufficient to permit the recovery of damages because we hold that the disparate impact cause of action authorized by the Rehabilitation Act regulations, see 34 C.F.R. § 104.4 (b)(4), cannot meaningfully be applied to…”
Guckenberger v. Boston Univ., 974 F. Supp. 106 (D. Mass. 1997). · cites it 3× “130 (b)(8); accord 34 C.F.R. § 104.4 (b)(4) (interpreting Section 504); see also Emery v.”
Sellers v. Univ. of Rio Grande, 838 F. Supp. 2d 677 (S.D. Ohio 2012). · cites it 3× “” 34 C.F.R. § 104.4 (b)(ii). In Hood College, 12 NDLR (LRP) 127 , 1997 NDLR (LRP) LEXIS 755 (OCR Region III 1997) (attached to Defendant’s Motion as Exhibit F), the College identified a list of accommodations that it determined might be appropriate for the student, including…”
S.B. v. Cal. Dep't of Educ., 327 F. Supp. 3d 1218 (E.D. Cal. 2018). “a FAPE and an equal opportunity to participate in the benefits and services provided by a public education in violation of 34 C.F.R. § 104.4 . (FAC, ¶ 98.) Yet, this claim is predicated on the notion that S.”
Est. of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014). “See 34 C.F.R. § 104.4 (b)(l)(i)-(iv), (vii), (2), (3); Galanter, Dear Colleague Letter, (Jan.”
W.B. v. Matula, 67 F.3d 484 (3rd Cir. 1995). · cites it 2× “1991); 34 C.F.R. § 104.4 (a). In addition, to be liable, defendants “must know or be reasonably expected to know of’ E.”
Hoot Ex Rel. Hoot v. Milan Area Schs., 853 F. Supp. 243 (E.D. Mich. 1994). · cites it 3× “34 C.F.R. § 104.4 (j). 6 On the basis of (1) the psychological testing that was conducted subsequent to the filing of this Complaint, (2) the determination of the IEPC, and (3) the affidavit and diagnosis of the examining psychologist, Geoff Krone, any challenge to a conclusion…”
Oberti Ex Rel. Oberti v. Bd. of Educ. of the Borough of Clementon Sch. Dist., 801 F. Supp. 1392 (D.N.J. 1992). · cites it 3× “” 34 C.F.R. § 104.4 (b)(l)(iv). See also 34 C.”
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