Legal basis and relevant statutes

Three existing federal statutes address the rights of children with disabilities to receive a free and appropriate public education (FAPE): Section 504 of the 1973 Rehabilitation Act, Individuals with Disabilities Education Act (IDEA), and Americans with Disabilities Act (ADA). FAPE is a civil right rooted in the Fourteenth Amendment of the United States Constitution which includes Equal Protection and Due Process clauses.

IDEA 2004 excerpts
Public Law 94-142 (IDEA) defines FAPE as special educational and related services at public expense (i.e. without charge), meeting the standards of approximate grade levels of the State education agency within the context of an individualized education program written with parental participation; and due process, including access to judicial review to determine that the State has complied with the Act and that the written individualized educational program is "reasonably calculated to enable the child to receive educational benefits," e.g. achieving passing marks and grade advancement.

Americans with Disabilities Act (ADA) excerpts
Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by state and local governmental entities, including public school districts. Under Title III the ADA also prohibits discrimination against students with disabilities in private schools that are considered public accommodations.

While private schools are not required to provide a free or appropriate education to students with disabilities (and by definition a private school cannot provide a public education), under the ADA they must take reasonable steps to ensure that students with disabilities have equal access to the private school's educational program. Many times this means changes to school rules, such as allowing a medically fragile child to carry a cell phone, permitting the use of tape recorders or laptop computers in class, or allowing a student with a movement disability extra time to walk between classrooms. A school might also provide auxiliary aids and services such as computer-aided transcription services, assistive listening devices for auditorium-based lectures, closed captioned decoders, open and closed captioning, TDDs, and videotext displays. A private school is not required to provide an auxiliary aid or service if the school can show that providing the service would fundamentally alter the program or require significant difficulty or expense, and under some circumstances they may charge extra for additional services. For example, if a school offers after-school tutoring to all students for an additional fee, they may charge the same fees to a disabled student who wants after-school tutoring.

Section 504 of the Rehabilitation Act of 1973
The Rehabilitation Act of 1973 established non-discrimination requirements for federal agencies and for State and local programs receiving federal assistance. The Act does not directly bar discrimination by individuals (as does the Americans with Disability Act, ADA), but rather operates indirectly and bars discrimination by the state and local recipients of federal assistance. Section 504 states that no otherwise qualified individual with a disability in the United States, as defined in section 705 of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." As a result of section 504, state public education programs began to be subject to federal non-discrimination requirements. Section 504 only requires that the school develop a plan for the child (unlike an IEP, which is a legally binding contact).