New Guidance Issued by the Department of Education on the Rights of Students with Disabilities
At the end of last month, the Department of Education released three new sets of guidance on the federal civil rights laws that govern students with disabilities. All three offer valuable information about current and evolving issues regarding disability accommodation.
The first piece of guidance is a parent and educator resource guide on Section 504 of the Rehabilitation Act. This resource guide aims at providing clarity to educators on their responsibilities to students under Section 504 and it includes information about identifying, evaluating, and placing students with disabilities. The resource guide also serves to offer parents guidance on steps they can take to ensure that their children receive all of the services to which they are entitled. According to the resource guide, the goal is to have “parents, teachers, and others … think about how they might respond [to the needs of students with disabilities] in different scenarios” and seeks to remind “all educational institutions receiving Federal financial assistance from the Department that they must vigilantly work to ensure compliance with Section 504 and other Federal laws that protect students with disabilities.” The resource guide provides a useful set of definitions under Section 504, as well as a number of scenarios to instruct schools on how to respond to various fact patterns that may present themselves.
The second set of documents includes a Dear Colleague Letter and a Question and Answer guide designed to provide additional information about the legal limitations on the use of restraint and seclusion, as the follow-up to the Department’s 2012 Resource Document on this topic. These documents come in response to data collected by the Department that indicates that students with disabilities are subjected to restraint and seclusion at rates far exceeding those of other students. According to the Department’s data, students with disabilities represented 12% of students enrolled in public schools nationally, but 67% of the students who were subjected to restraint or seclusion in school. Thus, the Dear Colleague Letter reminds educators that the use of restraint and seclusion with students with disabilities can result in the violation of both Section 504 and the Americans with Disabilities Act. Likewise, the Question and Answer guide advise educators that the need to use restraint or seclusion may indicate that the student may be in need of special education or related services. Moreover, the use of restraint or seclusion itself could result in trauma that, if not addressed, could result in the denial of FAPE. Repeated seclusion of a student without instruction or services could also lead to the school’s failure to comply with the student’s Section 504 plan and, thereby, constitute a denial of FAPE. Schools should be cautioned that the Department has advised that, while restraint and seclusion is not prohibited outright by Section 504, its use could violate Section 504 if its use (i) constitutes unnecessary different treatment, (ii) is based on a policy or practice that has a discriminatory effect on students with disabilities or (iii) denies a student’s right to FAPE.
Third and finally, the Department issued a guidance package jointly with the Office of Special Education and Rehabilitative Services addressing the rights of students with disabilities in public charter schools under both Section 504 and IDEA. The Department also issued a companion “Know Your Rights” document for parents addressing this topic. This guidance package stems from a report issued by the U.S. Government Accountability Office in 2012, which found lower enrollment of students with disabilities in charter schools. The package is aimed at ensuring that students with disabilities are able to enroll and attend public charter schools, just as they would other public schools. For students receiving services under Section 504, “a key message of the Section 504 guidance document is that charter school students with disabilities have the same Section 504 rights as other public school students with disabilities at the elementary and secondary education levels.” The 504 document also emphasizes that federal requirements for disability nondiscrimination apply to the recruitment, application, and admission of students to public charter schools. For students receiving services under IDEA, the IDEA guidance document “emphasizes that children with disabilities who attend charter schools and their parents retain all rights and protections under Part B of IDEA just as they would at other public schools.” Further, the IDEA guidance document makes clear that states retain authority over educational programming for students with disabilities, including students in public charter schools.
Parents, public school educators, and other advocates in the special education community have long been concerned that some charter schools in Illinois may be screening out students with disabilities at admission or refusing to offer full services to students with disabilities once enrolled, forcing those students to leave the school. The “Know Your Rights” document offers the reminder that, pursuant to Section 504, a charter school generally may not ask a prospective student if he or she has a disability. Further, the “Know Your Rights” document emphasizes that a charter school may not unilaterally limit the services it provides to a student with a disability and must provide FAPE.
None of these three sets of guidance are introducing new concepts, but they build upon and emphasize information provided in prior guidance or documents issued by the Department. School districts should review these new sets of guidance with an eye towards the likely emphasis of the OCR in looking at these issues for compliance purposes in the future.