On July 19, 2022, the Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) released several guidance documents concerning the civil rights of students with disabilities specific to student discipline. The resources are aimed at minimizing exclusionary discipline and supporting the pandemic-related mental health needs of students, particularly those with disabilities. With respect to schools providing training on the how to address disability-based behavior and implement the guidance, U.S. Secretary of Education Miguel Cardona said, “we expect that districts utilize the federal American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders, and hire additional staff.” The guidance documents reiterate requirements under federal law for disciplining students with disabilities and offers best practices and considerations for ensuring school disciplinary policies and practices are implemented in a non-discriminatory manner. Each guidance document is summarized below.
Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 and its accompanying Fact Sheet address student discipline under Section 504 of the Rehabilitation Act of 1973. Specifically, the guidance outlines the overlapping requirements under Section 504 and IDEA for schools to address disability-based discipline in a non-discriminatory manner.
The guidance first outlines what constitutes a Free and Appropriate Public Education (FAPE) under Section 504 specific to students with behavioral needs. The guidance highlights “when schools must identify and evaluate students with behavioral needs to determine if they are a student with a disability, the requirements for evaluation and placement determinations, how schools identify needed behavioral supports, the schools’ responsibility to meet the needs of students with disabilities, and the relevant procedural safeguards.” The guidance notes that FAPE can be impacted by disciplinary practices that do not appropriately take into consideration a student’s disability nor consider that their behavior may be a manifestation of their disability, particularly if such disciplinary practices contemplate a removal of the student from the school setting or a change in placement.
The guidance next provides examples of practical modifications schools can make to their disciplinary practices in addressing disability-based behavior. It also recommends schools provide training to all staff on how to engage with students with disabilities, given their responsibility for ensuring that any school staff that interact with students, including staff who may encounter students in passing such as custodial personnel and hall monitors, engage with students with disabilities in a nondiscriminatory manner.
OCR’s guidance also provides insight on distinguishing behavioral interventions that are non-discriminatory from behavioral interventions that are implemented in a manner more punitive to students with disabilities as compared to their peers without a disability. The guidance details the process by which OCR will investigate a complaint of disparate impact of student discipline. OCR may investigate any complaint of discrimination under any law in its jurisdiction, including allegations of “intersectional discrimination” in which a student may experience discriminatory treatment on an additional basis other than their disability, such as due to their race, color, national origin, sex, or age.
Positive, Proactive Approaches to Supporting the Needs of Children with Disabilities: A Guide for Stakeholders, issued by the Office of Special Education and Rehabilitative Services, provides guidance on ensuring students “have the opportunity for safe, in person learning” including guidance on reviewing “disciplinary practices and policies” and updating them where “disparities in their use persists.” This guidance encourages evidence-based behavioral supports and interventions to address students’ disability-related behaviors, as well as advises against the use of exclusionary disciplinary practices. In this guidance, as in the Section 504 guidance, SEAs, LEAs, schools, and early childhood programs are advised to earmark resources toward training educators to utilize various strategies to support students with disabilities.
The Questions and Answers Addressing the Needs of Children with Disabilities and the Individuals with Disabilities Education Act’s (IDEA’s) Discipline Provisions, addresses IDEA’s provisions related to the discipline of students with disabilities. Updating the 2009 OSERS guidance entitled Questions and Answers on Discipline Procedures, this document focuses on permitted and prohibited strategies to address disability-based behavioral challenges of students with disabilities. . The document highlights the process for disciplining an IDEA-eligible student, including the process for placing a student in an Interim Alternative Educational Setting (IAES) and strategies schools may employ to minimize the need for exclusionary discipline.
If you have questions about any of the new guidance issued by OCR and OSERS, please contact your Franczek attorney.