FAPE is defined differently under the IDEA, ADA, and 504 and as such, different standards apply.

   The Americans with Disabilities Act (ADA) enacted in 1990 and has deep roots in section 504.  In many ways the ADA is section 504, patterned after 504, the applicable provision of the ADA similarly states in the Title II,42 USC section 12132:
" Subject to the provisions of this title no qualified individual with a disability, shall by reason of such disability, be excluded for participating in or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by any such entity."
   The primary difference is, that while Section 504 applies only to organizations that receive federal funding, the ADA applies to a much broader universe, with respect to education, the ADA's objections and language are very similar to section 504, and for this reason both sections are administered by the Office for Civil rights and are considered essentially identical.  Any decision which attempts to be crafted in such a manner as to avoid the duties of the public entity under the ADA or is in conflict with the ADA is in error.
   Section 504 has a separate group of regulations that apply to public secondary school entities, these regulations are mirrored in the ADA, although the ADA applies to public schools by virtue of Title II, the regulations have no specific provisions regarding education programs.
   Section 504 is broader than the IDEA not only with respect to the persons protected, but also in the scope of what is considered a "Free and Appropriate Public Education" a term used in the implementing regulations for both statutes.  this while the IDEA defines FAPE to include the provision of special education and related services (34 CFR reg 300.8) the 504 definition includes provisions of special or regular education and related services.   Any analysis of FAPE did under section 504 must highlight that fact, that section 504 is a non-discrimination law, and therefore any analysis of an appropriate education for a student with disabilities needs to include an analysis of the educational opportunities provided to students who are not disabled.  This is because an appropriate education is one which meets the needs of a student with a disability as adequately as the needs of students without disabilities.  Unlike the IDEA, which focuses on the unique needs of a particular student with a disability and how to correct or accommodate that particular disability, section 504 looks at comparing the education of students with and without disabilities.  Therefore, in any analysis of FAPE under 504, a pivotal question is, are children with disabilities being provided access to equal facilities, programs, services and opportunities.  OCR has continually ruled that discriminations occurs when children are denied access to programs within their district due to their disability.  See Schuldt  v.  Manketo Independent School District N77, 937 F 2.d 1357 (1991) OCR does not require that the particular education opportunity be available at their school, as long as they can access it in the district.
   The US Supreme Court underlined this in the case South Eastern Community College  v.  Davis, 442 USC 397 (1979) when it held that an otherwise qualified individual with a disability under section 504 is one who, with reasonable modifications, is able to meet all of the programs requirements in spite of his or her disability.
   South Eastern dealt with admittance to a public community college not a high school to which entrance is guaranteed to a disabled child until either high school diploma is earned or until that child reaches age 22 under the IDEA.  Massachusetts Vocational High Schools have admitted that they are a public high school first and second a vocational school.  These schools have made no argument that there is any legal impediment such as residency which should exclude attendance nor have they articulated any argument that with accommodations children could not meet the standards of their programs in various BSEA cases.  They have failed to state any burdens to them in accepting children at any level, administrative, or financial, as all costs are covered by the sending school, or state.  What is clear that vocational high schools keep an artificially low admissions given the vast resources at their disposal.  
   The regional vocational schools were developed, in part, for the obvious economics of scale that the centralization of special programs bring.  The true burden would be for a regular public high school to develop a multiple of shop/agi/ vocational programs for just a few students each when in reality the duplicate programs exists in the regional vocational schools.  The public schools are further discouraged from such development by MGL chapter 71 sec. 71B which prohibits the public school from having such duplicate programs.  The state has made it uninviting to create expensive new programs which duplicate available programs through the under funding of school needs and the paperwork jungle the DOE bureaucracy maintains to even request such a program.
  Where a public high school child with a disability can not access a unique program because that program has limited access for no rational basis then section 504 is being violated.  The United States Supreme Court has interpreted Section 504 broadly.  As part of this broad interpretation the court held section 504 of the Rehabilitation Act to require reasonable accommodations in a particular programs or activity receiving federal financial assistance in order to ensure meaningful access to that program.  Alexander  v.  Choate 469 S 287, at 301 (1985).
   The Massachusetts Department of Education has blunted the prior practice of school districts special education teams when they could not meet the needs of a student within their own high school or school programs to place that child in the vocational school collaborative of which they were a member through the issuance of Administrative Advisory Sped 2003-3.  This advisory does not rise to a regulation but had the effect to prevent 504 and IEP teams from accessing vocational programs within their district illegally.  The DOE fully appreciate the fact that disabled children would be now denied access to the same like, kind, and quality vocational education available at the regional vocational public schools as their non disabled fellow students and could do nothing about it as vital information to effectuate an appeal is denied.  The term vocational education has seen substantial expansions from the regulations of the IDEA 97 to the proposal regulations of IDEA 2004.
   The IDEA 97 regulations states in 300.26 (a)(5)
"Vocational education means organized educational programs that are directly related to the preparation of individuality for paid or unpaid employment, as for additional preparation for a career requiring other than a baccalaureate or advanced degree." Authority: 20 USC 1401 (25)
   The proposed regulations of the IDEA 2004 have substantially expanded these prior regulation for clarity purposes.  The purposed regulation also reflects the expanded area of transitional planning and is one of the very few areas which congress chose to expand.
   Proposed regulation. 300.38 (b)(5) & (6) of the IDEA 2004.
(1)   Vocational education means:

(i)   organized educational programs that are directly related to the preparation of  individuals for paid or unpaid employments, or of additional preparation for a career not requiring a baccalalaurete or advanced degree;

(ii)   includes vocational and technical education.

(2)   Vocational and technical education means organized educational activities that-

(i)   Offer a sequence of courses that--

(a)   provides individuals with rigorous and challenging academic and technical knowledge and skills the individuals need to prepare for further education and for careers (other than careers requiring a Master's of doctoral degree) in current or emerging employment sectors;

(b)   may include the provision of skills or courses necessary to enroll in a sequence or courses that meet the requirements of this sub-paragraph; and

(c)   provides, at the post secondary level, for a 1 year certificate, and associates degree, or industry-recognized credential; and

(i)   include competency-based applied learning that contributes to the academic knowledge, higher-order reasoning and problem solving skill, work attitudes, general employability skills, technical skills, and occupation-specific skills, or an individual.

(Authority: 20 U.S.C. 1401 (29))

   The increase in scope of the new regulations is obvious.  The regulations require much more in depth courses and activities as are contemplated by the Mass DOE SPED advisory 2002-03 which talks about a student only working in the school office and other deminimus activities.  Where a public high school has no "rigorous and challenging academic and technical program" as Fairhaven because those programs were shifted to the regional vocational high schools then to deny access to those programs to disabled children is a violation to their rights as the programs that are available at their local public high school can not afford the disabled student anywhere near;
(a)    the same level courses which will promote academic and vocational achievement as provided to vocational students at the schools.  Violation of 28 CFR 35.130 (b) (i)(iii) and 34 CFR 104.4 (iv), (ii); and

(b)   does limit students privileges and opportunities that are enjoyed by non disabled students at the vocational high school.  Violation of 28 CFR section 130(b)(i) (vii) and 34 CFR 104.4 (vii); and

(c)   the process denies children from participating in or benefiting from the program offered by vocational high schools for no rational reason as there are has been no basis for such a denial of admissions which demonstrates an overwhelming burden to the vocational high schools to admit children.  Violation of 28 CFR 130(b) (i) (ii), 29 CFR section 41.51 (d) and 34 CFR 104.4 (iv).

   The regulations are clear, children are owed a challenging academic and technical skill based education which will prepare them for a career.  The regulation use the word rigorous in describing the breath of services owed to students.